This document provides an overview and comparison of copyright protection for computer software in Japan and the United States. It discusses how the US pushed for global harmonization of software copyright laws based on the US model in order to protect its dominant software industry. Japan initially proposed alternative sui generis legislation but ultimately adopted modified copyright law in line with US pressure. The document then examines the evolution of US software copyright law and key cases that established protection for both literal and non-literal elements of software. It also outlines the main provisions of Japanese copyright law for software protection.

1. The Copyright Protection of Computer Software ín Japan and U.S.
- A Comparative Studies -
ERICAAOKI
"The ~ftest thing in the universe overcome..~ hardest
the
thinp in the lJniver~e" - fL&:. TRe)
a "
1. TntTOductlon
Not many technological phenomenon conld prodnce snch an ample
economic, social and legal impact as the advance and spread ofthe infonnatics.
Twi11present in this study, the legal protectlon for computer software,
adopted by the two most important comtries in the world in this field: Japan and
V.S.
This work is taking as a premise, that the V.S. leadershíp in manufacture
and trade so:ftware,was the main factor which determined the actual rules for the
protection of computer software in the world. The V.S. share of software market
in 1984 amounted to at least 70 percent of the world market. It enable D.S. to
solve many of the problems in applying copyright protection to computer
software.
I will not present in this work. the CONTIJs Report. which contains the
main legal reasons of the adoption of copyright to proteet computer software. I
will attain mainly to the aspects occurred afier CONTU.
As a result of the economical and polítical pressure, and to folIow the
direction imposed by the United States, a significant number of countries, as
Japan. adapted their copyright laws to specifically include computer software as
copyrightable material.
The first and the most important episode where the American >-
Govemment actively sustained the focus of intelleetual property for software was
against Japan.
In 1983, the Ministry of Intemational Trade and IndustIy of Japan (MITI)
issued an informative with a proposal to establish a sui gener;s regime for the
software protection. ~nTI sustained that, according to the special characteristics
of computer programs. the existing legisIation resulted inadequate.

2. Surrender to the American pressure, the MITI project establishing 15
years of protection, has been put aside and the Japanese Diet decided for 3
modified copYlight whiclrresulted- in the-t~ Law. ----- - ---
-
The Vnited States wanted with this control measure, avoid that eaclJ
single cOlmtrydeve10psits own law to protect software, since this may represen1
the dilutlon of the proteetlon power of the system chosen by them. For this
reason, the establishment of an own legislation to protect software by a country
like Japan, one of the market leader in this field following the Vnited States, was
not acceptable. As a deve10ped country with a large and expressive computeI
industry, the influence of an independent law created in Japan could represent an
emerge of a protectionism policy, mainly in developing countries, which was
against to the goal V.S. intended to reach with the protection of software.
n. Copyright Proteetion for Computer Software - U S. point ofview
The 10st of intemational competitiveness in the 80's by the American
industries, affected many sectors, including high technology fields. In 70's,
Vnited States had the domain of 100% of the miero e1eetronies market, but in
1988, the share of Ameriean companies dropped to 42%.1
The Japanese companies superseded the American companies in its
technology, gaining a larger market shares, mainly in manufacture of equipment
for the semÍeonductor industries and robotles.
However, Vnited States maintained a solid leadership in the field of
hardware and computer software. The V.S. leadership in these fields was cruciaI
to determine the market of system software standards (e.g. CP-M, MS-DOS,
UNIX). Therefore, the American software manufacturers, has actively advocate
in favor of a consolidation of the legal protection of software in domestic and
worldwide market .
The main eoncem in that time, which stiU representing a problem, -"wa
the software pirates. The worldwide theft by software pirates cost the industry
about US$ 12 billion in 1992.
1 Carlos Maria Correa, Proteccion dei software: estudio de caso sobre ei desarro/lo dei derecho
economico, 494 Revista dei Derecho Industrial 557, 559 (1979).

3. As infonnation released by the Arneriean Business Software Allianee.
one-quarter of alI the losses - whieh hit both software makers and distributors -
were raeked up in Japan. while hi-teeh theft fell in Europe:-due in part to tough
newlaws.2
This faets carne towards to eonfinn the needs of Arnerican rnanufacturers
to have a stronger copyright protection laws and also a strict enforcement of the
laws. since V.S. industries progress would be even grater if these measures has
been taken.
By the moment, it is quite pacific the understanding regarding to the
copyrightability of computer software. However, for manY years the discussion
about which law could be more efficient to protect the rights on computer
software, maintained a hot discussion in courts, between scholars and in
Govemmental sphere.
As in other intelleetual property field, the American position over the
protection of software has produeed a great impact in legislation models adopted
by many other countries in the world.
In 1980, the Vnited States Govemment adopted an explicit position that
software shall be protected by copyright, this position has been taken, in part, as
a mea5ure of it5 foreign trade poliey.
The favorable argument of V.S. in taking this position was that,
the copyright offers the possibility to apply an entirely well known and respected
principIes and mIes: it provide a legal measure against an illegal reproduetion;
the protection period is longer than others inteIleetual property rights; the
protection is given since its ereation and in general it not require any forrnalities
to guarantee the rights; and the disclosure of protected work 1S not required.
Vhen applied in an international seale, the foeus of copyright a1sogrants
suhstantial advantages for exporters: the exÍstence of an accepted eonvention (e.g.
Beme and Universal); the inexistence of registry proeess to obtain protection; and
the universal protection since its creation.
The reIative low cost of obtaining the copyright and the norrnally strl;Jight
forward and expeditious registration process are the benefits of copyright
protection.
2 Reuter, Study: piracy o/ software costs $12 bil.. The Daily Yomiup, 1993

4. The computer program has been accepted for registration by the
Copyright Office since the decade of 60's, even though it was still unclear
whether computer software was a copyrightable "writing" under the original
Iegislation.
From the Copyright Act of 19093, which secured for authors the
exclusive rights to their respective writings, the legislation have developed to
attend the new needs of the market. Yet in 1964, even though it was still unclear
whether computer software was a copyrightable "writing" under the legislation,
the Copyright Office announced guidelines governing the registration of
computer programs.
Congress considerably broadened the registration guidelines by enacting
the Copyright Act of 19764, suggesting the copyrightability ofcomputer software.
The Act however, did not specifical1y prescribe that computer programs was
eligible for copyright protection.
Without an express mention that computer software was copyrightable
subject matter, the court failed to reach a consensus in this respect, so the
copyright protection for computer software remained problematic until Congress,
acting on the recommendation of the National Commission on New
Technological Uses of Copyrighted Works (CONTU) passed the adoption of
specific dispositions for computer software protection.5
The legal reasons to eleet the copyright to protect computer software was
extensively discussed in CONTU report, but this decision can also be justified in
economical terms, from a point of view of a country that is the main
manufacturer and exporter of computer software of the world.
The Computer Software Copyright Act of 1980, added proV1slOn
specifically dealing with computer programs, revised the Section 117 and
Íncluded the term "computer program" in the definitions of Section 101 of the
Law.
3U.S. Constitution art. I Section 8 c1.8.
417 U.S.C. Sections 101-810
5 ArthUT R. MilIer, Copyright Protection for Computer Programs. Databases. and Computer
Generated Works: Is Anything New Since CONTU?, 106 Harv.L.Rev. 978, 979 (1993)

5. The amendments plainly applied software represented in "source code",
therefore the eourts were required to resolve the quesrion of whether copyrighj
proteetion extended to computer programs expressed in "object code".
Copyrightable intellectual property, under V.S. law definition, must be
an original work of authorship, flxed in a tangible mediurn, from which it ean be
"perceived, reproduced, or otherwise communieated, either direetly or with the
aid of a machine or device". 6
The degree of originality is mínima!, requiring neither novelty nOI
ingenuity.7 Simply stated, onee the ereator transfers an idea to a tangible medium,
a eopyright is bom, providing protection from the moment of transfer. The
copyright then endures for the life ofthe author plus fifty years.8
Copyright law does not protect the copYright owner from having others
take the ideas used in the copyrighted work. 9 Copyright law protects on1y the
expression of the idea, not the idea itself.
The statutory scheme of copyright protection on1yprohibits copying., not
independent creation by another person or entity.
The evolution of American jurisprudence regarding to the software
protection has been carefully examined not only inside but also outside V.S. The
cases conceming the copyright protection of computer software can be analyzed
by divide it into three generations.10
The first generation of cases addressed the copying of substantial
portions of literal software elements, including objeet and source codes.
li Computcr Softwarc Copyright Act, 17 U.S.c. Scction 102 (a) (1988)
7 Atari Games Corp v. Oman. 888 F.2d 878, 883 (D.C. Cir. 1989).
8 17 U.S.c. Scetion 302 (a).
9 11 U.S.C. Section 102 (b).
lOJohn T.Soma, James Shortall Jr.& Vemon A. Evans, The Use ofQuiet Title and Declaratory
Judgment Proceeding in Computer Software Ownership Disputes,71:3 Denv. U. L Rev., 543,
555 (1994)

6. The 1980 amendment to the Copyright Act fmn1y established the
copyrightability of computer programs and, rejected the alleged source code-
object code distinction.l1
In the second generation, the courts considered the extent to which the
non-literal aspects of computer software, inc1uding the structure, sequence and
organization (SSO) of programs, received copyright protection. The court
established a test for distinguishing non-copyrightable idea from copyrightable
expression. The court held that afier isolating the idea, copyright protection
clearly extended beyond the literal code to the structure, sequ~nce and
organization of the program.12
Recently, the court presented an altemative analytical framework for
distinguishing idea from expression and determining the substantial similarity of
non-literal program structures.I3
The third generation of software copyright cases further extended
protection to non-literal elements, often focusing on the user interface. The court
established a test to determine the copyrightability of non-literal components of
computer software.14
According to V.S. law, the defmition of a computer program in the sense
of Section 101 of the V.S. Copyright Act also seems to suggest that a computer
consists of both hardware components and operating systems, and that
consequently the operating system as a part of the computer cannot be protected
under copyright law. Nevertheless, in some court decisions, operating system has
been protected under copyright law as computer programs.15
11 Appk Computer, Inc. v. Franklin Computer Corp., 714 F.2d. 1240 (3d Cir. 1983) certo
dismissed, 464 V.S. 1033 (1984)
12Whelan Associares Inc y Jaslow Dental Laboratot:Y, Inc., 797 F.2d 1222 (3d Cir 1986) certo
denied, 479 V.S. 1031 (1987».
13Computcr Associatcs Internatjonal, Ine v Altaj, Ine, 982 F.2d 693 (2d Cir. 1992).
HLotus Devclopment Corp v Paperbaek Softwarc Intematjonal, 740 F.Supp. 37 (D.Mass.
1990).
15Apple Computcr V Franklin Computer Corporation. 101 S. Ct. 690 (1984)
IOMlcrosott Corpomfioo v Showa Trildiog KK, 1219 Hanji 48, 1987 Patents and Licensing
17Karl H. Pilny, Legal Aspeets of Interfaees and Reverse Engineering - Protection in Germany,
the United States and Japan, 23 Intcrnational Review of Industrial Property and Copyright Law
I1C, 196,206 (1992)

7. The first Japanese copyright law was enacted in 1869. Under this
legislation, the author of a book, was obliged to obtain a license from the
government to published it.
This license, once obtained, protected the author's monopoly rights on
profits beard from the book, for the authorts life. This provision was amended in
1875, restricting the protection period for thirty years.
In 1887, Japan adopted a registration system, and in 1899, enacted its
frrst copyright statute, incorporating the principIes of the Beme Convention.
Under the 1899 Copyright Act, Japan granted the copyright protection to
the author of a writing, speech, drawing, painting, sculpture, model, photograph,
or other work of authorship. This Copyright Act served as a base of the Actual
Copyright Act enacted in 1970, and was amended several times. ln 1910, added
architecture, in 1920 added instrumental and vocal performance, in 1930
included music, in 1934, included sound recordings of particular works, and in
1956, Japan ratified the Universal Copyright Convention.
The Copyright Act Enforcement Order and Regulation of 197018, current
in force in Japan, has been amended repeatedly since its enactment until today.
The Japanese Copyright Act defines in its Article 2(1)(i)19the "works of
authorship" as a "production in which thoughts or sentiments are expressed in a
creative way and which falls within the literary, scientific, artistic or mutual
domain", and it lists in Article 10(1)20 an example of nine types of "works of
authorship" that are entitled to copyright protection.
One of the peculiarity of the Japanese Copyright Act is that it protects
compilations if there is sufficient creativity in the selection or arrangement of the
materiaIs.
"This compilation protection has important implications in protecting
computer databases. ln 1985, an advisory committee to the Japanese Govenunent
18Japancse Statutes, Law No. 48 of 1970, as amended by Japanese Copyright Act ArticIe 1-104;
Cabinct Order No. 335 of 1970; Ministry ofEducatíon Ordinance No. 26 of 1970.
19Iapanese Copyright Act art 2( 1)(í).
20Id. art 10(1).

8. recommended that computer databases be given compilation protection under the
Copyright Act. "21 This recommendation was followed in 1986.
The Japanese Copyright Act gives more rights for the author of protected
works than are specified in the V.S. Copyright Act.
The Japanese Act in its article 30-4922, identifies some specific
limitations and compulsory licenses, since there is no general "fair use"
exceptions to the exclusive rights :
1. reproduction for private use, unless the reproduction is made by an
automatic reproduction machine placed for public use;
2. reproduction of library materiaIs for certain non-profit activities;
3. limited quotations;
4. lirnited reproductions or broadcasts in schools, school text books, or
school education programs;
5. reporting of current events;
6. reproduction for judicial proceedings, and other matters
Copying is allowed for certain other uses by compulsory licenses. 23
According to the Japanese Copyright Act, authors automatically enjoy
both copyright protection and moral rights protection. Artic1e 17 (2)24 provides
that "the enjoyrnent of moral rights and copyright, shall not be subject to any
forrnality". However, registration still possible and, in some circumstances,
desirable in helping to prove copyright infringement.
Although registration system are not necessary for creation of copyright
protection, the Japanese Govemment operates four different copyright registers.
The Director General of Japan's Cultural Affairs Agency administers the
Copy-nght Register, the Publication Right Register and the Neighboring Rights
21Mark S. Lee, Japan's Approach to Copyright Protection for Computer Software , 16 Loy.
L.A. Int'l & Campo L.J. 675, 680-681 (1994).
22Japanese Copyright Act arts. 30-49.
23Id. art. 50.
24Id. Art. 17 (2).

9. Register25• A govemment ageney ereated in Deeember 1986, ealled the "Software
Information Center", administers the Computer Program Register26.
Under the Japanese law, notiee is not required for--copyrighted··work,
however, notiee can avoid eertain exemptions to eopyright holders' exclusive
rights that could otherwise apply.
The Japanese Act on1y protects works of Japanese national and works
"fust published" in Japan, unless an intemational treaty obliges Japan to proteet
otherwise ineligible works. "First published" works include works published
within thirty days of initial publieation eIsewhere. Nevertheless, Japan has
entered into one bilateral treaty and severa! multilateral conventions that protect
V.S. works. The Beme Convention or the Universal Copyright Convention
protect foreign works in Japan.
Generally, the terro of Japanese copyright is fifty years afier the author's
death.
From 70's, the Japanese Governrnent and computer industry started to
debate the amount and type of intellectual property protection appropriate for
computer software. While this debate progressed, Japanese courts found implicit
protection for computer software in the Copyright Act.
In July 5, 1972, the Committee of Software Protection Survey of the
Heavy Industry Agency of Ministry of International and Industry (MITI), issued
its reporto Basically, this Committee proposed the protection of the capital
invested for the development of computer program, guarantee its marketability,
and improve the computerization of the market. The Committee found that, to
reach those target, it is sufficient to protect against infringement by copying or
illegal use, and it is not necessary to protect the ldea itself. The committee
proposed a registration system, with a compulsory examination, publication of
the documentation of the program, arbitration iu case of disputes and a short tenn
protection of 10 year27.
25Id. arts. 71(1), 78 bis, 88
26 Id. arts. 75-78
27 Nobuhiro Nakayama, Software no Hoteki Hogo [Legal Protection of Software], 9 (Yuhikaku
1990)

10. ln 1973, the Cultural Affair Agency Copyright Committee, presented its
opinion that the computer software shall be protected by copyright law.
Even though, the computer software protection problem has been
discussed from early 70's in Japan, there was not many significant problems until
1982. In 1982, the Hitachi v. IBM28,trade secret infringement case, brought the
public attention to the question with regard to computer software protection.
In the same period, the infringement of computer games increased. This
question was concluded with the decision of the Tokyo District Court dated
December 6, 1982, which, by the first time, explicitly recognized the
copyrightability of software.
Based in above mentioned decisions , the Ministry of International Trade
and Industry (MITI) and the Culture Affair Agency, separately proposed a new
law and the amendment of the Copyright Act respectively.
The MITI issued in 1983, a proposaI, caIled Program Right (Puroguramu
ken), which established a sui generis regime for the protection of software,
cIearly defrning that the copyright law should not be applicable for computer
software protection.
The MITI proposal was aiming to reach 3 mam targets: 1) promotion of
the development of software; 2) regulation of the infringement by illegal copies
and 3) promote the use of software.
The MITI proposed Program Right, reflected the dissatisfaction with the
copyright law to protect software. The point MITI was concerned, was the
inexistence of the concept of right to use tn the copyright, so, to use the "work",
no manner of fact, will result in copy of that work. For who was in the defense of
the copyright, copy ofthe work has the same meaning ofuse.
Also, MITI was conceming that the computer software, as a product of
highest intellectual work of a man, representing a main factor of the developrnent
of an industrial society, should be in constant improvement, which necessarily
needs to be very fast. By this meaning, MITI sustained that by allowtng the
copyright protection of computer software, this protection will be for a very'long
period of 50 years, which causes damage to the rapid improvement of the
technology. 50, they proposed the same protection period of a patent, 15 years29.
28Nano Hiko, Chitckishoyuken [InteIlectual Property Right], 69-132 (Chuo Koronsha 1988)
29Nano Hiko, Chitekishoyukcn [Intellectual Property Right), 156(Chuo Koronsha 1988)

11. ln tum, the Cultural Affair Agency, presented its report in Januaty 1984,
with totally ditrerent position from MITI. According to the Cultural Atrair
Agency's Report, a program, until it tums to firmware, shall be subject matter of
copyright, and 50 the copyright wiIl be applied.
The Cultural Affair Agency report proposed to include computer
program in the copyright subject matter (as it is in the actual Copyright Act,
Article 10).
They also proposed a rearrangement of the roles regarding to "work on
hire" (Article 15 of the current Copyright Act), and with regard to version up, it
proposed the inclusion of an exception to the right of preserving the integrity.
The discussion between MITI and the Cultural Affair Agency, regarding
to their contradictory positions, was finally decided by an external pressure. The
United States, which has decided to adopt the copyright to protect software, was
strongly against the MITI position, and this issue 5tarted to be one of the items of
the Japan-U.S. trade friction.
Finally, the protection of computer software in Japan tumed to be
submitted to the Copyright Act, and the computer software has been considered
as a "work" within the meaning of the Act. The 1985 Amendments to the
Japanese Copyright Act clarified the copyright protection to be given to computer
software.
According to the Act, "program" means "an expression of combined
instructions given to a computer 50 as to make it function and obtain a certain
result". The Act also added "program works" to its list of authorship works, and
specified limitations on the protection provided to software.
The 1985 Arnendrnent however, kept some characteristics of the MITI
projeet., since it not proteet language. mIes and algorithms.
The Japanese law added a specific "work for hire" provision, where the
software created by employee in the course of its employment, the employer
shall be considered the aUthor of the work, and establish a voluntary registrarion
system of software, as the proposal ofthe Cultural AfIair Agency.

12. IV. Conclusion
The United State strong position against the MITI proposal for the
proteetion of software, was, no manner of faet, more related to defense of trade
interest than a rational and seholastie study of the questiono
However, the diseussion regarding the copyrightability of software,
stayed in the near past. Nowadays, most of developed eountries and some
developing eouotries, aceepted the copyright as the institute to proteet computeI
software.
Moreover, the main target, whieh was the proteetion of software, as an
intelleetual property, has been aehieved. The effieieney of this roles still in
questioD.,vis a vis, the amount ofthe lost from infringements in 1992.
The globalization of the roles, seems to be an utopia, sinee the diversity
of eeonoIDÍealeapacity of eaeh couotry, raise different interests to be defended.
Nevertheless, the adoption of copyright to proteet software in Japan,
confirmed the tendency, and allowed a eertain uniformity.
The future, no one knows. And once the teehnology develops in a speed
that legal mIes canoot follow, in a near future, probably wiIl be necessary to
create a more efficient institute of law, more proper to protect the rights of
eomputer software.