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Generally, it is said that reverse engineering is the process whereby one analyses,
evaluates and then finds out the structure and technology of the manufacturing method
of a product which was produced by someone else.
This terminology first appeared as legal text in the Semiconductor Chip Protection Law,
Section 906 of the United States of America, in 1984.
However, the contents of this Section was adapted and in practice
in the Patent Law of many countries, much earlier to this.
Reference to reverse engineering is made in the Japanese Patent Law Section 69 (1)
where it states that "
The provisions of Patent right will not cover the exercise of examining
and research solely for the purpose of innovative patents."
Furthermore, the above mentioned American Semiconductor Chip Protection Law of 1984,
the Japanese law (Section 43 of 1985) on circuit configuration of semiconductor
integrated circuit and the laws on semiconductor chip protection
in many other countries permits the exercise of reverse engineering.
However, though in the Japanese Copyright Law,
1985 Amendment, a clear provision was provided for computer programs to be protected
as a copyright object, there was no established rule regarding reverse engineering.
In recent years many foreign countries also enacted the protection
by the Copyright Law for software programs,
but still there isn't any legislation for reverse engineering.
The speed of change in the computer industry is extraordinarily fast,
and in reality it probably is not so important to study reverse engineering
for computer programs.
However, when one considers that Japan has to relate in the international situation,
the problems related to reverse engineering has the potential to develop
into a major international problem in the future.
The purpose of this study was to investigate and extract an understanding
of reverse engineering for computer program, and based on this elucidate
how the Japanese Copyright Law regards computer program.
This study will also grapple with the possible legal interpretations of the domestic
and international problems that could appear in the future.
While investigating the legal protection process of computer program it was found that,
till it was protected by the Copyright Law,
1985 Amendment, there were two conflicting ideas,
one supporting the protection by the Copyright Law (supported by the Cultural Ministry)
and the other supporting the protection by program right law specialized
for computer program similar to the Patent law
(supported by the Ministry of International Trade and Industry).
It is said that the arguments before the legislation was passed has only historical meaning.
But, in the process of this study,
it was noticed that remnants of this argument still exist even today.
Before beginning this study,
I considered reverse engineering to be a unique problem of computer program.
But looking back in history, I understand that it was also related to the parodies
of the traditional Copyright objects and industrial products too.
Regarding reverse engineering for computer program,
today's argument is whether reproduction for the purpose of reverse engineering
should be approved or not under the Copyright Law.
The only court judgement in Japan on reverse engineering is the case of Shuwa Co. Ltd.
vs. Microsoft Corp.
The court ruled that the defendant's act of replacing the plaintiff's object program
with hexadecimal code and the replication of the plaintiff's object program code
is an infringement of the Copyright Law.
On the other hand in two court judgments in the United States of America,
the cases of Sega Enterprises Ltd. vs. Acorad Co. Ltd.
and Atari Co. Ltd. vs. America Nitendo Co. Ltd.,
the judgment was in favor of replication for reverse engineering.
But this judgment is an example where reverse engineering is recognized
by the US Copyright Law under Section 107 Fair Use rule.
As the Japanese Copyright Law does not include this understanding of the Fair Use,
it is not applicable in Japan.
I analyzed the understanding of the Copyright Law
regarding the theories of the legitimacy of reverse engineering.
Most of the theories try to apply the American Fair Use to the Japanese context
and I judge that this is an inappropriate understanding of the Japanese Copyright Law.
There are criticisms that if we illegetimize reverse engineering
on the context of protecting the expressions and ideas present in the program,
then even the hidden ideas under the expression should be protected
and that is beyond the scope of the Copyright Law
and the balance of rights of the owners of the Copyright and the users will collapse.
In this connection, there is some room to debate this understanding, but in any event,
it is not possible under the understanding of the current Copyright Law .
Accordingly, I expect that the Japanese Copyright Law will not permit the replication
of computer program for reverse engineering.
Finally, I did some research on the Fair Use in the United States and the EC Directive.
In the future, when Japan starts to examine the legislative regulation
and rules concretely regarding the individual purposes and actions of reverse engineering,
the American Fair Use cases and way of thinking could be our future precedent ,
and the EC Directive's individual contents will also be very useful.
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