Episode 27

Currently, amendments to the Design Act to protect images in the virtual world (metaverse) are under consideration.
The issue at stake here is the division of roles between Copyright Act and Design Act.
Copyright Act protects the creative expression of ideas or emotions (Article 2, Paragraph 1, Item 1 of the Copyright Act). Currently, many countries, including Japan, are members of the Berne Convention. The Convention stipulates a principle of no formality (Article 5(2) of the Berne Convention).
Design Act is an industrial property law that requires registration with the Patent Office to establish rights.
In Europe, the European Union (EU) has a specialized agency for design registration, the European Union Intellectual Property Office (EUIPO), located in Alicante, Valencia, Spain.
The EUIPO's "Directive on the Protection of European Community Designs" stipulates that "'design' means the external appearance of all or part of a product resulting from the product itself and/or its ornamental features, in particular its lines, contour, colour, shape, texture and/or material" (Article 1(a)).
The term "'product'" also stipulates that "'product' means any industrial or handicraft product and includes, in particular, parts, packaging, exterior packaging, graphic symbols and typographical typefaces, etc., intended to be incorporated into a complex product, but excluding computer programs" (Article 1(b)).
In Japan, "handicraft products" are protected by Copyright Act (Article 2, Paragraph 2 of the Copyright Act), but not by Design Act (Article 3, Heading of the Design Act).
Furthermore, because typographical typefaces cannot be considered the shape of an article (Article 2, Paragraph 1 of the Design Act), it is considered difficult to protect them under Design Act in Japan.
The Berne Convention stipulates that "The scope of application of the laws relating to works of applied art and industrial designs, and the conditions for protection of such works and designs, shall be determined by the laws of the countries of the Union. Works protected in the country of origin exclusively as designs may claim in other countries of the Union only the special protection accorded to industrial designs in those countries. However, if no such special protection is granted in the other countries, such works shall be protected as artistic works" (Article 2(7)).
In other words, the conditions for protection of works of applied art and industrial designs are determined by the laws of the countries of the Union, but if protection is not granted as designs, they must be protected as artistic works. This means that applied art can be protected as either a work of art or an industrial design, and failing to be protected as either constitutes a violation of the Berne Convention.
Japan's Design Act stipulates, as a requirement for design registration, that "any person who creates a design capable of industrial application... may obtain a design registration for that design" (Article 3, Paragraph 1, head of the Act). In other words, applied art that cannot be used industrially must be protected under Copyright Act.
With regard to the copyrightability of typographical typefaces, the Supreme Court has ruled that "to qualify as a work under Article 2, Paragraph 1, Item 1 of the Copyright Act, a typeface must possess originality that distinguishes it from conventional typographical typefaces, and aesthetic qualities that make it an object of artistic appreciation in itself" (Supreme Court, First Petty Bench, Judgment of September 7, 2000, Case No. 332 of 1998, Minshu Vol. 54, No. 7, p. 2481).
For this reason, requiring copyright protection of typographical typefaces, which are not protected under the Design Act, to require "aesthetic quality that can be regarded as equivalent to pure art" could be a violation of the Berne Convention.
With regard to the protection of images in virtual space, it is appropriate to protect "designs that can be used industrially" under Design Act, and all other designs under Copyright Act.
For example, images used in computer simulation experiments, rather than evaluation experiments that previously required the creation of physical prototypes, would likely constitute an "industrially applicable design."
On the other hand, images in the metaverse space are likely to be protected by copyright law.