Japanese Courts Interpret the ‘Algorithm’ Limitation on the Copyright Protection of Programs

The Japanese Copyright Law provides that copyright protection in computer programs does not extend to algorithms used in making programs. In March of 1989, the 29th division of the Tokyo District Court, which specializes in intellectual property cases, had occasion to consider how far beyond the literal code of a computer program the scope of protection would extend, in the context of a motion for preliminary injunction against alleged infringement of the copyright in several computer programs in Systems Science Corp. v. Toyo Sokki K.K. Implicitly, the court dealt with the algorithm limitation on the scope of protection. The case was then appealed to the Tokyo High Court, which issued an opinion in June 1989 expressly relying in part on the statutory algorithm limitation.While the two courts differed in their views on whether an injunction should be issued with respect to programs that were admittedly copied by the defendants, both courts used strong language in denying plaintiff's claim of infringement with respect to another program that was not literally copied. Both opinions stand in sharp contrast to the famous Whelan Inc. v. Jaslow Dental Laboratory, Inc. decision in the United States, which held that the copyright in a computer program protects only against literal copying of code but also against copying of structure, sequence and organization. The Japanese case strongly suggests that courts in Japan will take a more moderate approach to the protection of computer programs under copyright law than have courts in the United States