Introduction

A new licensing system for orphan works (the “New System”) will be available on April 1, 2026 under Japanese copyright law.  While Japan copyright law currently has an existing license system (the “Existing System”) for orphan works, under which the Japanese government may grant indefinite-term license to an orphan work to an applicant, such license is only available if the copyright owner is unknown or cannot be contacted.  Therefore, the Existing System would not work in cases where the copyright owner and contact information is known, but a response cannot be obtained from the copyright owner.  On the other hand, from the copyright owner’s perspective, the Existing System does not allow a copyright owner to cancel such license granted by the Japanese government, even if he/she wishes to do so and would be willing to negotiate with a prospective licensee.  While the Existing System will still available, the New System will offer a more flexible license system for both the copyright owner and licensee of an orphan work (Section 67-3 of the Japanese copyright law).

Overview of the New System

A. Requirements for using the New System

The New System will be available only (i) for published and “Non-Administered works and (ii) when the contact information of the copyright owner of the work is not published (the “Qualified Work”).  A “Non-Administered” work means a work not registered with a Japanese Copyright Collective Agency (“JCCA”), such as JASRAC for musical works or JPCA for photographic works.  Therefore, if a work is registered with one of the JCAAs, the New System will not be available.  To the extent that a work is a Qualitied Work, the New System will be available when (a) a potential licensee could not obtain confirmation on the copyright owner’s intention for licensing the Qualified Work even though the potential licensee has taken all of the measures specified in No.6 of the Public Notice (Kokuji) issued by the Agency of Cultural Affairs (“ACA”) on April, 8, 2025, or (b) the copyright owner has not expressed that his/her intention is to not grant a license to the Qualified Work.  Such measures described in (a) include searching the contact information of the copyright owner by using a search engine.  As an example, if a potential licensee was able to find the contact information of the copyright owner through a website and contacted him/her, but the potential licensee could not obtain any responses from the copyright owner within 14 days, the potential licensee may receive a license under the New System.

Once the ACA grants a license to the licensee, the ACA is required to make a public notice of such license by using appropriate measures, such as posting that it has granted such license on the ACA’s website.

B. License period available for a license under the New System

Unlike the Existing System, the maximum license period for a Qualified Work under the New System will be three (3) years.  A potential licensee may file a request for extension if the work continues to be a Qualitied Work at such time.  On the other hand, under the New System, the copyright owner will be able to file a request for cancellation of such license if he/she took appropriate measures for negotiating with the potential licensee (such as posting the contact information on his/her website).

C. Security Deposit

When the ACA decides to grant a license to a Qualified Work to an applicant, the Commissioner of the ACA will determine and notify the amount of the deposit that the applicant is required to pay to receive the license. The applicant is required to pay such deposit to the agent appointed by the ACA.

D. Appointed Agent

The ACA will appoint a private organization as their agent for administering certain processes under this New System.  Such agent will examine the request for a license filed by an applicant, calculate the amount of the applicable deposit for the Commissioner’s consideration, and receive and hold the deposit paid by the applicant.  The use of an appointed agent will make the processes for granting a license under the New System much easier and faster than those under the Existing System.

E. The New System will also be available for neighboring rights

This New System will be available not only for copyrights, but also for neighboring rights (such as a case where a licensee could not confirm the copyright owner’s intention for licensing his/her performing rights).

Key Takeaways

The New System seems more user-friendly than the Existing System, but there are some disadvantages for a licensee.  First, the license may be cancelled by the copyright owner upon their request.  Second, a licensee is required to file a request for extension of the license period every three (3) years.  While a licensee may negotiate the terms for a license with the copyright owner even when the copyright owner files a request for cancellation, the license granted under the New System would be vulnerable, because the licensee must stop using the Qualified Work if the Commissioner cancels the license. Further, the license period may not be extended if a work in question ceases to be a Qualified Work.  A potential licensee should evaluate whether a license under the New System or the Existing System would be more beneficial for him/her before filing a request for a license for an orphan work.