In this entry, I will explain the basics of direct circumvention regulation (i.e., regulations that prohibits direct circumvention of DRM technologies).
In Japan, the scope of direct circumvention regulation is very limited compared to that of the U.S in two major aspects: (1)the scope of protected technologies and (2) the effect of violation.
In terms of protected technologies, Japanese copyright law protects only usage controls, and not access control, as “technological protection measures.” Article 2 item 20 of the Japanese Copyright Law defines the “technological protection measures” as “measures to prevent or deter such acts as constitute infringements on moral rights or copyright … or neighboring rights.”
According to the legislative history, the rationale behind this limitation is that copyright law should only give support to established rights entitled in the law and nothing further. It is stated that, because copyright owners do not have a right to monopolize mere access to copyrighted works by people, protection of access control technologies should be outside the scope of the Copyright Law.
Nobuhiro Nakayama, a chief of the Copyright Council for the legislation of anti-circumvention regulations, maintains in the official commentary that it is understandable that copyright owners try to protect their works by technologies. He also understands the desire of copyright owners who seek some legal action toward such protection measures, because technological protection is not perfect. However, he explains that reason why the legislation avoided regulating access to information enabled by circumvention as follows: “because regulating people’s access [to information] includes a broader problem that is beyond the issue of protecting property: which is, academic freedom, freedom of speech, right to access, etc.” He recognizes voices that express concerns about the practical efficiency of the regulations because of the “lack of protection toward access control.” However, Nakayama explains that the legislation chose the moderate or prudent regulation on access “because the issue of controlling access to information has an enormous impact, good or bad, for the society in the information age to come. Therefore, a long-term careful discussion is necessary.”
In addition, the situations where the direct circumvention of usage control technologies is prohibited are very limited. Circumvention of usage control by users is prohibited only when users do so in order to make private usage of protected works (which is otherwise exempt from copyright under Article 30). In sum, circumvention of usage control only causes the loss of statutory exemption regarding private copies and modification of such works (thereby make circumventer liable for reproduction and modification of the work).
Circumvention for the purposes of other statutory exemptions such as reproduction in libraries, quotation, and educational purposes is generally regarded to be allowed under Japanese copyright law.
Because the scope of regulation is very limited, especially in a sense that it does not regulate access control, there is no statutory exemption regarding the direct circumvention regulations in Japanese copyright law.