The Copyright Act and the Industrial Property Right Laws
頻出~41 min8 terms23 past questions
Goals of this unit
Tell copyright from industrial property rights by what triggers the right: creating a work, or registration at the Japan Patent Office.
State what each of the 4 industrial property laws protects: technical ideas, improvements in an article's shape, visual design, or distinguishing marks.
Judge what is and is not protected as a work, and who owns the copyright in a program written on the job.
The Copyright Act (著作権法) protects works (著作物), meaning creative expressions of thoughts or feelings, and the right in them (copyright, 著作権) arises automatically the moment a work is created.
This principle, under which rights arise with no filing or registration, is called automatic protection (無方式主義). Works include not only writing, music, and photographs but also computer programs as a form of expression. Copying for private use and proper quotation with the source cited are allowed in principle, but publishing or distributing someone else's work without permission can be an infringement.
AnalogyIt is like writing a poem in your notebook: from that moment it counts as your own work, with no need to wait for a government office to process anything.
How to rememberThe character 著 comes from arawasu (著す), meaning to write down or express. Remember it from the character: the right attaches the instant a work is expressed.
Exam points
ExamCopyright (著作権) arises when a work (著作物) is created, without any application or registration.
ExamThe Copyright Act (著作権法) leaves out 3 means of writing programs from protection: programming languages (プログラム言語), rules (規約), and solutions (解法). A solution here means an algorithm (アルゴリズム), the worked-out procedure for processing.
ExamA program written by an employee as part of their job on the company's instructions has the company as its author (著作者) unless agreed otherwise. When development is contracted out, the copyright belongs to the contractor that actually wrote it unless agreed otherwise.
The Patent Act (特許法) protects highly advanced technical ideas that use the laws of nature (inventions, 発明) through registration after filing with the Japan Patent Office and passing examination.
Filing
Examination
Registration
Exclusive use
In principle, for 20 years from the filing date, the holder may use the invention exclusively or let other companies use it.
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Rights like the patent right that arise through filing with and registration at the Japan Patent Office are called industrial property rights (産業財産権), which also include utility model, design, and trademark rights. Examination checks such points as whether the invention is new (novelty, 新規性), whether experts in the field could not easily come up with it (inventive step, 進歩性), and whether it can be used in industry. The holder can keep the invention for in-house use only or license it to other companies for a fee.
AnalogyIt is like having a new technology reviewed by the authorities and receiving an exclusive-use permit, so no one else may use it without permission for a set period.
How to rememberRead 特許 as "specially (特) permitted (許)": a right the state grants, after examination, to keep something to yourself.
Exam points
ExamA patent right (特許権) lasts 20 years from the filing date unless extended.
ExamWhen several applications cover the same invention, the patent right goes to whoever filed first. This is called the first-to-file principle (先願主義).
A business model patent (ビジネスモデル特許) is a patent granted under the Patent Act for a mechanism that carries out a way of doing business with computers or networks.
A business idea alone is not an invention, and it can qualify only once it becomes a concrete mechanism that processes things with IT. The name is special, but its basis is the Patent Act itself, and like any patent it is registered after application and examination.
AnalogyA goal like "a shop where customers never wait" earns no right by itself; only once you design a system that automatically links ordering to pickup does it get into the examination ring.
How to rememberThe name says "model," but it ends in "patent." Remember that only one law protects it: the Patent Act.
Exam points
ExamA new business mechanism built with IT can be covered by a patent right (特許権) under the Patent Act (特許法).
ExamWhat a business model patent (ビジネスモデル特許) covers is the mechanism itself that rebuilds business processes such as sales or payment with IT.
The Utility Model Act (実用新案法) protects improvements in the shape, structure, or combination of physical articles (devices, 考案).
A device need not be as advanced as a patentable invention, but methods or programs not tied to an article are not covered. Once filed, it is registered without a substantive examination of novelty or similar points (registration without examination, 無審査主義). The right lasts 10 years from filing.
How to remember実用 means making everyday tools handier, and 新案 means a new idea. Link the name to clever changes in the shape of tools, that is, articles.
Exam points
ExamThe Utility Model Act (実用新案法) covers improvements in an article's shape, structure, or combination, so a new product made by combining existing items can also count as a device (考案).
Mix-upA patent (特許) is registered after examination of novelty (新規性) and other points, whereas a utility model (実用新案) is registered without a substantive examination.
The Design Act (意匠法) protects, through registration, the look created by the shape, pattern, or color of an article or the like (a design, 意匠).
It covers appearances that give a sense of beauty to the eye. To obtain the right, you must file with the Japan Patent Office and be registered after examination.
AnalogyA right that covers not the mechanism that makes a chair comfortable but only its look, such as the curve of the backrest or its colors.
How to rememberThe 匠 in 意匠 means craftsman. Remember it as the design care a craftsman puts into a shape.
Exam points
ExamThe Design Act (意匠法) protects the appearance formed by an article's shape, pattern, color, and so on, not the product's function or mechanism.
ExamA design (意匠) can be registered only for articles and the like that can be produced repeatedly by industrial means.
The Trademark Act (商標法) protects, through registration, the words, figures, symbols, and other marks used to tell goods or services apart from those of other companies (trademarks, 商標).
Trademarks are attached either to physical goods or to services (役務), in which people or organizations provide work. Because a mark builds up trust in the business the longer it is used, the right lasts 10 years from registration but can in effect be held forever through repeated renewal. This sets it apart from the other industrial property rights, which expire when their term ends.
AnalogyJust as a regular customer picks up a product on sight of the logo, knowing it is from the usual shop, this right keeps others from hijacking the trust built up in that mark.
How to rememberThe 標 in 商標 is the one in 標識 (signpost), meaning a marker. Read the name as the law that protects a business's marker.
Exam points
ExamA trademark right (商標権) is an industrial property right (産業財産権) that can effectively be held without limit through repeated renewal.
ExamThe industrial property rights administered by the Japan Patent Office come in 4 kinds: patent rights (特許権), utility model rights (実用新案権), design rights (意匠権), and trademark rights.
Mix-upA trademark (商標) protects a mark that shows where something comes from, while a design (意匠) protects the beauty of an article's appearance, so both rights can exist separately on the same product.
A trademark (トレードマーク) is a mark attached to physical goods (商品) to show which business they come from.
Brand names and logos on stationery or on the bodies and boxes of home appliances are typical examples. Once registered under the Trademark Act, it is protected as a trademark right.
AnalogyA name tag on the item itself, something you can pick up and take home.
Exam points
Mix-upA trademark (トレードマーク) and a service mark (サービスマーク) are both marks under the Trademark Act (商標法), named by whether they go on goods or on services (役務).
A service mark (サービスマーク) is a mark attached to intangible services (役務) to show which business provides them.
It is used in businesses such as hotels and barbershops that provide the work itself rather than handing over goods. Typical examples are service names or logos shown on shop signs or staff uniforms.
AnalogyWith nothing to take home, it is a name tag hung at the shop front to show whose service you received.
How to rememberService means work done for others. Remember it from the English word: a mark for what people provide through their own effort.
Exam points
ExamA service mark (サービスマーク) is a mark that a provider of services (役務) uses so that its services can be told apart from other companies'.