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Japan – Amendments to METI Guidelines on Electronic Commerce and Information Property Trading

By Ann Cheung and Keitaro Uzawa

The Ministry of Economy, Trade and Industry of Japan (METI) recently revised the Interpretative Guidelines on Electronic Commerce and Information Property Trading (Guidelines), which apply to all online business operations in Japan and clarify how the Civil Code, which governs Japanese commercial contracts, and other relevant laws, such as, the Act on Special Provisions to the Civil Code Concerning Electronic Consumer Contracts and Electronic Acceptance Notices (Act No. 95 of 2001) (Electronic Contract Act) and the Act on Specified Commercial Transactions (Act No. 57 of 1976), are applied to various legal issues relating to electronic commerce (e.g., online shopping) and information property trading (e.g., the broadcasting and the distribution of software and other digital content).

Existing sections of the Guidelines have been amended to provide detailed guidance on certain issues surrounding electronic publications. The following existing sections of the Guidelines have been amended in line with revisions to the Copyright Act (Act No. 48 of 1970) and recent judicial decisions:

  • Section II-1: Liability of Business Entities Providing Consumer-generated Media (CGM) Service for Mediating Transmission of Illegal Information
  • Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website
  • Section III-12-3: Obligation to Redistribute Electronic Publications

Section II-1: Liability of Business Entities Providing CGM Service for Mediating Transmission of Illegal Information

Articles 709 and 719 of the Civil Code (Act No. 89 of 1896) apply to cases where an internet user posts or uploads information that infringes third-party rights. Regardless of whether there is any request for removal, if it is easy to prevent the transmission of such information (for example, by deleting such information from the website), and if the business entity or the website operator providing the CGM services, such as, blogging or video-sharing services, fails to remove such information, such business entity or website operator may be held liable for tort to the person whose right is violated by the illegal transmission of such information.

According to Article 3(1)(i) and (ii) of the Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (Act No. 137 of 2001) (Provider Liability Limitation Act), CGM service providers are only liable for not taking steps independently to delete information under certain circumstances, such as, situations where the CGM service providers have actual or constructive knowledge that the distribution of the relevant information is an infringement of third-party rights.

In a judgment of Sapporo District Court dated 4 September 2014, the court considered the situation where a user posted defamatory information about a restaurant. The restaurant requested the website operator to delete the defamatory information, but the website operator took an unreasonably long time to delete the defamatory information. The court held that the website operator was not required to remove the defamatory information because setting up a website for users to contribute word-of-mouth information of restaurants did not infringe the personal rights (jinkaku-ken) of the restaurants and was therefore lawful.

Section II-2: Legal Matters Involved in Setting up a Link to Another Person’s Website

Where a link to a website with copyrighted contents is configured so that a viewer of the linked website and/or copyrighted contents may mistake the linked materials for those belonging to the link, such link may constitute an infringement of the copyright holder’s moral rights and public transmission rights under the Copyright Act.

Moral rights under the Copyright Act include: (i) the right of the author to make his or her work available to the public, (ii) the right of the author to determine whether and how his or her identity as author of the work is presented (for example, whether under his or her real name or under his or her pseudonym), and (iii) the right of the author to maintain the integrity and the title of his or her work (no modification to any work is to be made without the consent of the author of the work).

A judgment of Tokyo District Court dated 17 January 2014 dealt with infringement of copyright by a person setting up a link to another’s content under the Provider Liability Limitation Act. The court held that the act of the person who set up a link to an illegally uploaded comic was equivalent to the act of those who performed the uploading of the electronic file of the comic and that the person who set up the link infringed both copyright and public transmission rights.

Section III-12-3: Obligation to Redistribute Electronic Publications

Prior to the revision of the Copyright Act, publishers (e.g., e-book agents) who had publishing rights but were not the copyright holders (e.g., authors) could not act as an intermediary in public broadcasting of digital content or public transmission of electronic publications to third-party distributors. On 1 January 2015, revisions of the Copyright Act came into force so that electronic publication distributors can now obtain broadcasting and publishing licenses directly from publishers (e.g., e-book agents), who have been granted rights to sub-distribute such materials by the relevant copyright holders (e.g., authors).

Earlier Amendments in Relation to Electronic Commerce

In addition to the 2015 amendments discussed above, please see our previous updates for an overview of the 2014 amendments to the Guidelines.

Please contact Ann Cheung or Keitaro Uzawa for further information.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2015/05/japan-amendments-to-meti-guidelines-on-electronic-commerce-and-information-property-trading/