Requirements for Copyright Infringement
Copyright infringement requires two elements:
1. Copying (依拠性)
The infringer must have had access to the copyrighted work and based their creation on it. Coincidental similarity does not constitute infringement.
2. Substantial Similarity (類似性)
The infringing work must be substantially identical or similar in expression to the original. Ideas are not protected — only expression is protected (Copyright Act, Article 2, Paragraph 1, Item 1).
Injunctions (Article 112)
A copyright holder may demand cessation of infringing acts and destruction of infringing materials. Injunctions do not require proof of fault — the mere fact of infringement is sufficient.
Preliminary Injunctions
Where infringement is ongoing, a preliminary injunction (Civil Preservation Act, Article 23) may be filed before full litigation to immediately stop the infringement.
Damages (Civil Code Article 709)
Damages require intent or negligence. In copyright cases, negligence is generally presumed if the infringer knew of the copyright's existence.
Statutory Damage Presumptions (Article 114)
| Provision | Content |
|---|---|
| Article 114(1) | Infringer's profits presumed to equal copyright holder's damages |
| Article 114(2) | Royalty equivalent may be claimed as damages |
| Article 114(3) | Court may assess reasonable damages when difficult to prove |
Moral Rights
Separate from economic rights, moral rights (right of attribution, right of integrity, right of disclosure under Articles 19–21) may also be infringed. Moral rights are personal to the author and cannot be transferred.
Criminal Liability
Copyright infringement (Article 119): - Individuals: up to 10 years imprisonment or ¥10 million fine - Corporations: up to ¥300 million fine (Article 124)
Summary
The standard approach is: preserve evidence, send a cease-and-desist letter, and escalate to litigation if necessary. The statutory presumptions in Article 114 significantly ease the burden of proving damages.