Copyright Act Article 30-2: Incidental Works
Incidental works refer to works such as paintings that appear in the background of news videos, for example. For this reason, incidental works are sometimes called "captured works."
As a specific definition, an incidental work is a work that becomes a minor component of a photographic work, etc., in relation to the objects, etc., that are the subject of photography, etc., when creating a work through methods such as photography, sound recording, or video recording (Article 30-2, Paragraph 1 of the Copyright Act).
Incidental works can be used by any method if:
1. It is difficult to separate the captured third-party work (Separability),
2. The influence of the captured third-party work on the created photograph or video, etc., is minor (Minority), and
3. It does not unreasonably prejudice the interests of the copyright holder of the captured third-party work (Non-infringement of interests).
(Article 30-2, Paragraph 1 of the Copyright Act).
The determination of non-infringement of interests is ultimately made on a case-by-case basis in judicial proceedings, from the perspective of whether it conflicts with the copyright holder's market for the work or hinders the potential future sales channels of the work (from the Agency for Cultural Affairs website).
The Agency for Cultural Affairs website stated the following (May 16, 2023).
In Paragraph 1 of this Article, "difficult to separate" means that when creating a certain work (photographic work, etc.), it is objectively recognized as socially difficult to create it while excluding other works (incidental works) that became incidental subjects in light of the circumstances at the time of creation.
Also, while it states "limited to those that become minor components of the relevant photographic work, etc.," whether or not it is a "minor component" is determined according to individual cases in light of the type of work, etc., and there is no pre-determined quantitative ratio.
Furthermore, the proviso to the same paragraph states, "this shall not apply if it would unreasonably prejudice the interests of the copyright holder," and it will ultimately be determined on a case-by-case basis in judicial proceedings from the perspective of whether it conflicts with the copyright holder's market for the work or hinders the potential future sales channels of the work.
・Copyright Act Article 30-2: Use of Incidental Works
(Use of Incidental Works) Article 30-2: When performing photography, sound recording, video recording, broadcasting, or other acts of reproducing or transmitting images or sounds of objects in a similar manner (hereinafter referred to as "reproduction/transmission acts" in this paragraph), works related to objects or sounds that are incidentally included as subjects (including objects or sounds that are included as part of the objects or sounds that are the subject of reproduction/transmission; hereinafter referred to as "incidental objects, etc." in this paragraph) (limited to works that become minor components of the created/transmitted work (hereinafter referred to as "created/transmitted material" in this Article) in light of the proportion of the work in the created/transmitted material, the accuracy of the reproduction of the work in the created/transmitted material, and other factors; hereinafter referred to as "incidental works" in this Article) may be used by any method in conjunction with the reproduction/transmission act, within a justifiable scope in light of the presence or absence of a purpose to obtain profit from the use of the incidental work, the degree of difficulty in separating the incidental objects, etc., from the objects, etc., that are the subject of reproduction/transmission, the role played by the incidental work in the created/transmitted material, and other factors. However, this shall not apply if it would unreasonably prejudice the interests of the copyright holder in light of the type and purpose of the incidental work and the manner of such use. 2. Incidental works used pursuant to the provisions of the preceding paragraph may be used by any method in conjunction with the use of the created/transmitted material related to the incidental work. However, this shall not apply if it would unreasonably prejudice the interests of the copyright holder in light of the type and purpose of the incidental work and the manner of such use.
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