1996 (wa) 9325 injunction against copyright infringement, etc.
oral argument closed on December 10, 1999

Plaintiff                         Nippon Telegraph and Telephone Company, Ltd.
                                    represented by Jun'ichiro MIYAZU, Representative Director
Counsel for Plaintiff        Haruyasu UCHIDA, Attorney at Law
do.                                Wataru SUEYOSHI, Attorney at Law
do.                                Makoto SHIMIZU, Attorney at Law
do.                                Tsunemichi YOKOYAMA, Attorney at Law
do.                                Yutaka MIYOSHI, Attorney at Law

Defendant                      Daikei Kabushiki-gaisha
                                    represented by Hiroharu NAKAMURA, Representative Director
Counsel for Defendant    Ryuichi MURABAYASHI, Attorney at Law

1.  Defendant shall not produce or distribute items enumerated in the attached list of items A.
2.  Defendant shall destroy items enumerated in the attached list of items A.
3.  Defendant shall pay to plaintiff the sum of ¥32, 520,425 with an annual interest of 5 per cent from March 31, 1997 to the day of full payment.
4.  All the other claims of plaintiff are dismissed.
5.  The cost of litigation shall be divided into seven parts; two parts shall be borne by defendant, and the rest by plaintiff.
6.  This judgment shall be amenable to provisional execution with regard to the part in favor of plaintiff only.
 
 

     1.  To the same effect as l of the Formal Judgment.
     2.  To the same effect as 2 of the Formal Judgment.
     3.  Defendant shall pay to plaintiff the sum of ¥300,0000,000, the part of ¥100.000.000 to be paid with an annual interest of 5 per cent from May 30, 1996 to the day of full payment and the part of ¥200,000,000 with an annual interest of 5 per cent from April 14, 1998 to the day of full payment.

        Plaintiff has produced by its own efforts a database described in plaintiff's accompanying list of works 1 (hereinafter called "Town Page Database") and an occupationally classified telephone directory or directories described in plaintiff's list of works 2 (hereinafter called "Town Pages"), in which it owns a database copyright and a compilation copyright respectively. And on the claim that defendant's production and distribution of the database(s) described in the attached list of items A (hereinafter called "Classified Data") infringes those copyrights, plaintiff sues defendant seeking damages as well as an injunction against its production and distribution of the Classified Data and an order to destroy the Classified Data.

 I..  Basic Facts

 l  Out of the Town Pages, those produced since April l, 1985 and the Town Page Database were produced on the initiative of plaintiff by its employees in the course of performing their duties and made public in the name of plaintiff; out of the Town Pages, those produced before April l, 1965 were produced on the initiative of the Nippon Telegraph and Telephone Public Corporation by its employees in the course of performing their duties and made public in its name; and on April l, l985 plaintiff as successor to that public corporation succeeded to all its rights and interests (A1. A2, A3--7 (1-5 respectively), A19, KA--4, testimony of Takuya SHIOTANI, gist of the whole argument).

 2  Defendant produces and distributes the Classified Data (A11, 12, 20, B9, 34, KA5, testimony of Shinji OKUBO, gist of the whole argument).

II .  Issues and Parties' Arguments

 1. (I) Does the Town Page Database qualify as a database work?
  (Plaintiff's Argument)
   (1) The Town Page Database is not a mere random list of telephone number information (telephone numbers, addresses, names, occupations, articles, etc.), but a system into which plaintiff selected and organized raw telephone number information by using ingenuity all its own with an eye to facilitating users' search for numbers.

    (i) Screening of Telephone Number Information
   For the benefit of both users and subscribers, such telephone numbers as are not supposed to receive messages from outside, or those of such departments or sections as have nothing to do with users' inquiries or orders are not listed.

   (ii) Determination of Names to Be Listed
   Subscribers' names do not necessarily appear just as they are. As occasion demands, popular names are used, titles preceding names are omitted, store names appear instead of or along with personal names, names that smell strongly of advertising, or that are conscious of kana [Japanese alphabet] order of arrangement are omitted. Repetition of the same company or store names is avoided, for instance, by listing the numbers of the respective counters of one department store. With regard to licensed occupations, unlicensed persons are eliminated.

   (iii) The Occupational Classification System
    The Town Page Database adopts the following occupational classification system which it believes best fits subscribers' businesses as they actually are:
 

    (a) Designing of an Occupational Classification System
   In setting up or modifying an occupational class, plaintiff takes into consideration a variety of factors including demands of the trade, wishes of users in general, and findings of its own investigations such as research on search words in information retrieval.  As a result, the occupational classification system of the Town Page Database is so designed as to enable users to search for needed articles or services by the words (occupations) that occur to them.

    In setting up or modifying an occupational class, precautions are taken against a socially little known class, an overlapping one, a too broad or too narrow one, and the like.  There are no hard-and-fast rules as to setting up a new class or abolishing an existing one. In the final analysis, it depends on the judgment of well-experienced employees in charge.  No compiling policy can turn that work into a mechanical one.  It is a creative work.

    The Japan Standard Industrial Classification which is typical of its kind in Japan could have furnished a basis for an occupationally classified telephone directory. But it is utterly different from the occupational classification system of the Town Page Database.

    (b) Occupational Classification as Applied to Telephone Number Information  An occupational classification system, even if well designed to enable users to search by such words as are most likely to occur to them, will not offer efficient help to them unless all individual telephone numbers are correctly classified.  A constant effort is exerted by plaintiff to ensure correct classification.  Each time any subscriber's telephone number information changes, he is interrogated for full information so that every subscriber can be placed in one or more classes which are believed to best fit his business as it actually is.

  (2) Since the Town Page Database serves the purpose of joining users looking for articles or services on the one hand and subscribers who want to supply them on the other, plaintiff uses its own ingenuity to enable users to search for needed articles or services by the words (occupations) that occur to them.

   (i) Keyword Selection
   A selection of keywords is made to facilitate users' search in such a way that they have only to input keywords to retrieve needed telephone number information.

   (ii) Data Representation
    For the convenience of computer users, special ingenuity is used in devising a mode of data representation.

 (3) The Town Page Database which, as above stated, has creativity in its selection or systematic organization of information, qualifies as a database work.

  (Defendant's Argument)
    Defendant disputes that the Town Page Database has creativity in its selection or systematic organization of information

    The Town Page Database has no creativity, because its occupational classification is a mere list of commonplace occupations arranged in kana order.

    Additionally, it is not creative simply because its individual occupation names are slightly different from those of the Japan Standard Industrial Classification.

 (II) Do the Classified Data infringe the database copyright in the Town Paper Database?
 (Plaintiff's Argument)
  (1) The telephone number information of the Classified Data is nationwide, and its revision is synchronized with that of the Town Page Database.

  (2) In the Town Page Database, letters not within JIS (foreign letters) contained in its telephone number information are replaced by similar letters within JIS, hirakana, or katakana. In the Classified Data, which also replace letters, adopt exactly the same pattern of replacement as the Town Paper Database.

   Therefore, the Classified Data are a dead copy of the telephone number information of the Town Page Database.

   The same may be said of the occupational classification. Defendant, without so much as examining the contents of the occupational classification of the Town Paper Database, makes a dead copy of it in its Classified Data, and, with regard to the occupational classification system and its application to the telephone number information, closely imitates the systematic organization of information in the Town Page Database.

  (3) As stated above, the Classified Data are a dead copy of the Town Page Database, so that the production and distribution of the Classified Data constitutes an infringement of the database copyright in the Town Page Database.

  �@(Defendant's Argument)
   The Classified Data are not a dead copy of the Town Page Database, because defendant produced the Classified Data by first inputting occupation names and telephone numbers from the Town Pages which it had purchased, then drawing names and addresses from its Teledata made out of the Hallo Pages, while checking those data against each other, and lastly classifying occupations in accordance with the Japan Standard Industrial Classification.

2 (I) Do the Town Pages qualify as a compilation?
  (Plaintiff's Argument)
   Plaintiff's argument in 1 (I)(1) (i)--(iv) applies here. It may be added that, with regard to arrangement of classified occupations, arrangement of telephone number information and advertisements in each classified occupation, use of marks and abbreviations for reference, division into areas convenient for reference, special ingenuity was used to facilitate users' search. In these matters lies creativity.  Thus the Town Pages qualify as compilation.

   (Defendant's Argument)
   Defendant disputes that the Town Pages have creativity by reason of their selection or arrangement of materials.

   The occupational classification of the Town Pages is a mere list of commonplace occupations arranged in kana order of arrangement, which, therefore, is devoid of creativity.

   The Town Pages do not become creative simply because the individual occupation names are slightly different from those of the Japan Standard Industrial Classification.

 (II) Do the Classified Data infringe the compilation copyright in the Town Pages?
    (Plaintiff's Argument)
   As stated in plaintiff's argument in 1 (II) above,  the Classified Data are a dead copy of the Town Page Database.

   Since creativity is common to both the Town Page sand the Town Page Database,  the Classified Data are an imitation of the Town Pages, too.

   Therefore, the production and distribution of the Classified Data is an infringement of the compilation copyright in the Town Pages.

   (Defendant's Argument)
   The Classified Data are not a dead copy of the Town Page Database, because defendant produced the Classified Data by first inputting occupation names and telephone numbers from the Town Pages which it had purchased, then drawing names and addresses from its Teledata made out of the Hallo Pages, while checking those data against each other, and lastly classifying occupations in accordance with the Japan Standard Industrial Classification.



3  Damages to Plaintiff
(Plaintiff's Argument)
  (I) Principal Claim
   Plaintiff's royalty on the license of the Town Page Database is ¥3 a piece of telephone number information.�@

   The Town Page Database stores in its national edition 11 million pieces of telephone number information, while the Classified Data, which have a national edition like the Town Page Database, store at least 10 million pieces of telephone number information.

    Defendant has sold at least 9 editions of the Classified Data, so that the royalty would have amounted to at least (¥3 x 10 million x 9 editions =)¥270 million.

    Attorneys' fees incurred in this lawsuit amount to no less than ¥30 million.

    Therefore, defendant through its production and distribution of the Classified Data has caused damages of at least ¥300 million to plaintiff.

  (II) Alternative Claim
    The Classified Data had sales of ¥328,000,425 during the period from April 1992 to March l997, the margin of profit on the sales of the Classified Data can by no means have been below 9 per cent, so that defendant's profit from the production and distribution of the Classified Data is at least (¥328,004,728 x 9%=)¥29,520,425.

    Attorneys' fees incurred in this lawsuit are no less than ¥30 million Therefore, defendant through the manufacture and distribution of the Classified Data has caused damages of at least ¥59,520,425 to plaintiff.

  (Defendant's Argument)
    (I) With regard to the principal claim
     Defendant disputes principal's claim.

     Defendant does not know the price of plaintiff's information or its quantity.

     Defendant denies the alleged quantity sold by it.

    (II) With regard to the alternative claim
     Defendant disputes principal's claim.

     Plaintiff bases its claim on the total sales of defendant, but the Town Pages and the Town Page Database which plaintiff produces in evidence is only part of the databases in plaintiff's accompanying list of works l and the Town Pages in plaintiff's accompanying list of works 2. Therefore, plaintiff cannot claim damages on the basis of defendant's total sales.

 (I) The Nippon Telegraph and Telephone Public Corporation which had been publishing a classified telephone directory, made an extensive revision of its occupational classification in 1984. Until then it had about 600 classified occupations, which it increased to about 1800. At that time the public corporation also examined the individual classified occupations, and compiled a new occupational classification system.

     The occupational classification system was compiled with reference to the classified telephone directory which the public corporation had been publishing, various kinds of information journals, the Japan Standard Industrial Classification, foreign classified telephone directories, etc.

     The occupational classification system has been used in the Town Pages that have been published since April 1984 and also in the Town Pager Database.

    The occupational classification system has been reviewed every several years with reference to trends in the different branches of the trade, findings of plaintiff's research, etc. and in consideration of social recognition given to the respective occupational classes, too broad or too narrow classes, overlapping classes, etc.

 (II) The occupational classification of the Town Pages and the Town Page Database as of l992 (the Town Page Database of September l992 and the Town Pages issued on March 1, l992) are both as shown in the "NTT Occupational Classification" column in "The Japan Standard Industrial Classification--Daiei Occupational Classification--NTT Occupational Classification Compared in Tabular Form" attached hereto.

 (III) Plaintiff's employees in charge, when they put individual telephone number information in an occupational class of the Town Page Database or the Town Pages, interrogate subscribers to collect information on articles they deals in and actual conditions of their businesses, and they also do all they can to facilitate users' search. For instance, (i) out of the telephone number information respecting places of business, they leave out that respecting those which do not receive users' inquiries or orders; (ii) they list well-known popular names in addition to formal names; (iii) they adopt store names instead of personal names; (iv) they reject names to which business types (such as electricity, sushi, ...)are prefixed, names that smell strongly of advertisement (such as "low-priced and delicious, speedy and safe, ..."), names conscious of kana order of arrangement (such as "aaa, ..."),etc.; (v) they do not enter as one name a combination of a personal name and a store name, or of two store names, but as two separate names (because otherwise irretrievable);  (vi) they avoid useless repetition of the same company or store names by first placing the name of, say, a department store followed by a complete list of counters; (vii) in the case of licensed occupations, they eliminate unlicensed persons.

    Sometimes, however, they behave otherwise in accord with subscribers' wishes.

 (IV) The Town Page Database contains all the telephone number information of the whole country.

   The Town Pages are telephone directories occupationally classified by prefectures (to, do, fu, ken) or by specially designated subdivisions, which contain telephone number information in the respective areas, a somewhat different occupational classification being adopted in some of those areas.

 2  As to the Production of the Classified Data
        The following findings are made from Pt 2 (Outline of the Case). I (Basic Facts) 2, Evidence (A10-12, 14, 15, 18. 21, A22 (3, 6, 63), A24-28, B8, 9. and testimony of Shinji OKUBO), and gist of the whole argument supra.
   (I) The Classified Data are produced by defendant simultaneously with each revision of the Town Page Database by pirating its occupational classification and the telephone number information of that Database.

        There are three types of such piracy: (i) The occupational classification as well as the telephone number information of the Town Page Database are copied in the Classified  Data without any change whatever, (ii) Both of them are copied without any change, except naming of the occupational classes, (3) Both of them are copied without any change, except merging several occupational classes into a subsumptive one and presenting the relevant telephone number information under one head. In some cases, however, the Classified Data present the telephone number information of several occupational classes of the Town Page Database under one of them.

        Defendant, after copying the occupational classification and the telephone number information from the Town Page Database in the above three ways, produced the Classified Data by using a code copied from that of the Japan Standard Industrial Classification and a code of its own framing for those occupational classes not found in that Classification.

   (II) The occupational classification of the Classified Data is as shown in the numbered lines in the "Daikei Occupational Classification" column in "The Japan Standard Industrial Classification--Daikei Occupational Classification--NTT Occupational Classification Compared in Tabular Form" attached hereto, (except lines 16, 17, 20, 183, 251, 255, 262, 326, 335, 394, 397, 600, 682, 688, 710, 756, 804 and 970. There is no evidence that the occupational classes in these lines in the Daikei Occupational Classification column are presented as the occupational classes in the Classified Data). However, some items in the Daikei Occupational Classification column are occupationally classified as a matter of evidence, to be sure, but the occupation names are not actually identifiable.

   (III) The Classified Data do not contain any telephone number information that is not found in the Town Paper Database. Defendant, while engaged in producing the Classified Data, never attempted to make its own occupational classification of telephone number information, except as stated in I above.

   (IV)  The Classified Data contains all the telephone number information of the whole country,
with prefectural data in separate files. Defendant sells data drawn from the Classified Data on specific areas or occupational classes or other units in accord with the wishes of customers. Defendant alleges, "Defendant produced the Classified Data by first inputting occupation names and telephone numbers from the Town Pages which it had purchased, then drawing names and addresses from its Teledata made out of the Hallow Pages, and lastly classifying occupations in accordance with the Japan Standard Industrial Classification." This is supported by a record in B34 and by the testimony of Shinji OKUBO. But Evidence (A22 and A23 (1-40 respectively), A24-26, testimony of Shinji OKUBO) and the gist of the whole argument show that many concrete names in the Classified Data agree with the Town Page Database and disagree with the Hallow Pages. And Evidence (A16, 18, 20, 21. B7) shows that the occupational classes in the Administrative Management Agency's the Japan Standard Industrial Classification predating the October 1993 revision are in accord with the description in the corresponding column (high [broad] classification, middle classification, low classification, and minute classification) in the "Japan Standard Industrial Classification--Daikei Occupational Classification--NTT Occupational Classification Compared in Tabular Form" attached hereto, but the occupational classification of the Classified Data is widely different from the Japan Standard Industrial Classification, while on the other hand, it bears a close resemblance to that of the Town Page Database, as stated in (I) above. The process of producing the Classified Data which defendant claims it followed is indeed a roundabout one. In view of the foregoing neither the statement in B34 nor the testimony of Shinji OKUBO is trustworthy. There is no other evidence contrary to the findings (I)--(IV) above.

 II As to Issue 1 (I)

1 (I) From the findings in I 1 (II), Evidence (A8, 9, 14-16, 18, 20. 27, 28, B7, 8, testimony of Takuya SHIOTANI), and the gist of the whole argument supra, we find that "An Account of How the Occupational Classes of the Town Page Database Were Used" attached hereto correctly describes the circumstance in which, out of about 1800 occupational classes of the Town Page Database, 100 are used in the Classified Data as coextensive occupational classes (with the single exception of (homonymic "sotei") which means "binding books" in the Database, while the same word means "shoeing horses" in the Classified Data and yet has the same telephone number information).

  (II) Evidence 'A18, 21, B7) shows that the occupational classification of the Town Page Database is widely different from the occupational classes of the Japan Standard Industrial Classification, so that there are scarcely any specific occupational classes that are coextensive with some minute occupational classes of the Japan Standard Industrial Classification.  Nor does it appear that there exists any occupational classification system similar to that of the Town Paper Database.

  (III) As stated in I 1 (II) above, the occupational classification of the Town Page Database has low occupational classes which include the 100 referred to in (I) above, and above them middle occupational classes each connotative of plural low ones, and further above them high occupational classes each connotative of plural middle ones, thus forming a three-layer structure (see the Town Page Database Occupational Classification Table attached hereto).

  (IV) The facts in i l above and those in I -- III above, taken altogether, show that the occupational classification system of the Town Paper Database is a comprehensive database covering all the occupations which plaintiff used its own ingenuity in compiling by classifying individual occupations and then hierarchizing them so as to facilitate search.

 2  As stated in I 1 (III) above, plaintiff's employees in charge, in putting individual telephone number information in proper occupational classes in the Town Paper Database, interrogate subscribers to collect information on articles they deal in and the actual conditions of their businesses. Evidence (A 19 and testimony of Takuya  SHIOTANI) shows that though such interrogation needs certain techniques and experience, the job is short of deciding whether to list or not, that the Database with as many as l800 small occupational classes allows little latitude in selection, and that use of the techniques and experience is limited to a fact-finding function by gaining a correct understanding of the actual; conditions of the subscribers' businesses.  We cannot find in the job any creativity in the way of selecting or systematic organization of information.

   As stated in I l (III) above, plaintiff also takes every care in listing names and the like in order to facilitate users' search as itemized in I 1 (III) (i)--(vii) above.  We cannot find any particular creativity in it, either, because, as the supplier of an occupationally classified database of telephone number information, plaintiff is only doing what is expected of it as a matter of course. There is nothing creative in it in the way of selection or systematic organization of information.

  3  Besides, plaintiff, in support of its claim to the creativity of the Town Page Database as a database work, points out that it reviews it from time to time, and that it uses its own ingenuity in keyword selection or data representation. Evidently occasional review cannot, without reference to its concrete contents, give the Town Page Database any creativity in selecting or systematic organization of information. As to the ingenuity used in key word selection or data representation, there is no concrete evidence to show that because of such ingenuity the Database has become creative in selecting or systematizing information.

  4  As seen above, it may be rightly said that the Town Page Database qualifies as a database work by virtue of its having occupationally classified telephone number information by its occupational classification system.

 III As to Issue 1 (II)

  1 (I) As we have found in I 2 above, the Classified Data was produced out of the occupational classification and the telephone number information of the Town Page Database, by pirating those two in three ways: (i) class names and telephone number information without ay change, i.e., just as they appear in the Town Page Database, or (ii) the same except changing some occupational class names, or (iii) the same except merging several of them into one, or grouping several into a subsumptive class, while putting together plural telephone numbers under one head.  This is all that defendant did; except this, it never used its own occupational classification.

   (II) Out of the Classified Data, the part of the occupational classification and the telephone number information copied from the Town Paper Database, without any change whatever or with changed occupational class names, is a duplication of the systematic organization in which credit for creativity is due to the Database. The part of the occupational classification and the telephone umber information in which several occupational classes merged into one or telephone number information under several occupational classes are put together under a higher-order occupational class has the systemic formation in which the credit for creativity is due to the Database. Defendant's grouping plural occupational classes into one appears to be the only exception. But because that is not a classification all its own, but is also a mere duplication of the systematic organization in which the Database has credit for creativity.

  (III)  Our finding in (I) above shows that the Classified Data were made out of data copied from the Town Page Database.

  (IV)  Therefore, we may conclude that the Classified Data,  made out of data copied from the Town Paper Database, are a duplication of the systematic organization in which the Database is creative.

  2  As stated in I 2 (IV) above, defendant draws data from the Classified Data so made, and sells such data on specific areas or occupational classes or other units in accordance with the wishes of customers. It follows from this that the production and distribution of the Classified Data constitutes an infringement of the copyright in the Town Paper Database.

 IV. As to Issue 2 (I)

  1 Evidence (A8, 9, testimony of Takuya SHIOTANI) and the gist of the whole argument show that the occupational classification and the telephone number information of the Town Pages and the Town Paper Database are identical in contents, except for a time lag in revision.
  2  The fact in 1 above taken into consideration together with the statement in II above, we may conclude that the occupational classification of the Town Papers is an all-comprising system compiled by classifying individual occupational classes and then hierarchizing them with main emphasis on ease of search, in which plaintiff used its own ingenuity, and that there can be no parallel with it. The Town Pages that applied such an occupational classification system to the occupational classification of telephone number information qualifies as a compilation whose creativity lies in its arrangement of materials.

  3  As stated in I 1 (III), plaintiff's employees in charge, in putting individual telephone number information in proper occupational classes in the Town Pages, interrogate subscribers to collect information on the articles they deal in and the actual conditions of their businesses, to be sure. But we find in the job no creativity in the way of selection or arrangement of materials.

    Also as stated in I 1 (III) above, plaintiff asserts that it does all it can with regard to entry names etc. with a view to facilitating users' search as itemized in I 1 (III) (i)--(vii), but since these are nothing but what the supplier of a classified telephone directory is supposed to provides a matter of course, we find none of them creative. For all such care it uses, therefore, we find no creativity in the way of selection or arrangement of materials.

  4  Plaintiff also claims creativity with regard to the Town Papers, by pointing out the fact that it reviews the Town Pages from time to time, and that it uses its own symbols and abbreviations in the arrangement of and search for advertisements in the Town Papers and makes a division of areas fit for search. Occasional revisions in themselves, regardless of concrete contents, evidently does not give to the Town Pages creativity in its selection or arrangement of materials. As to the arrangement of advertisements, use of symbols and abbreviations, or division of areas no claim of creativity is made in concrete terms.  Therefore, we do not find these things vest the Town Papers with any creativity in its selection or arrangement of materials.

  5  From the foregoing we find that the Town Pages qualify as a compilation by virtue of its occupational classification of telephone number information on an occupational classification system.

  6  As stated in I 1 (IV) above, the Town Pages are telephone directories giving occupationally classified telephone number information of the respective prefectures or specific subdivisions. As there is no national edition, the compilation copyright in the Town Pages may be claimed for the respective local editions.

   And as also stated in I 1 (IV) above, the occupational classification of the Town Pages varies with areas or subsections.

 V. As to Issue 2 (II)

  1  As stated in IV 6 above, the compilation copyright in the Town Pages is in the respective local editions, while, as stated in I 2 above, the Classified Data are a database containing all the telephone number information of the whole country and an occupational classification in which characteristics of specific areas are taken into consideration.

  2  But as stated in I 2 above, we found that the Classified Data were made by copying the occupational classification and the telephone number information of the Town Paper Database.
Evidence (A22 & 23 (1-14 respectively), A24-26, testimony of Shinji OKUBO and the gist of the whole argument show that as there are many discrepancies between the Classified Data and the Town Pages in concrete names etc., we cannot say the Classified Data are based on the Town Pages. (The fact that the Classified Data are based on the Town Page Database may allow us to say that they are also based on the Town Pages, if the Town Page Database is a derivative work of the Town Pages. But there is no allegation or demonstration to that effect.)

  3  Therefore, we cannot say that the production and distribution of the Classified Data is an infringement of the compilation copyright in the Town Pages.

 VI.  As to Issue 3

  1  Plaintiff primarily claims damages measured by its royalty on the telephone number information of the Town Page Database, but seeing that telephone number information in itself does not qualify as a copyrightable work, this measurement of damages is not approvable.

  2   Evidence (B34) shows that the sales of the Classified Data from April 1992 to March 1997 amounted to ¥ 328,004,728, defendant's rate of profit on the total sales was presumably never below 9 per cent, and, in view of the way the Classified Data were produced and distributed as found in I 2 above, the rate of profit on the Classified Data cannot have been below that rate of profit on the total sales.

  3  Consequently, the profit defendant realized cannot have been below (¥328,004,729 x 9 % =)¥29,520,425, and this is presumably the amount of loss plaintiff suffered.

     The attorneys' fees may be assessed at ¥3.000.000 as the reasonable amount of plaintiff's loss under this head.

  4  Hence plaintiff's total loss amounts to the sum of two figures in 3 above, i. e. (¥29,520,425
+ ¥3,000,000 =)¥32,520,425.

 VII.  Accordingly, this court decides as in the Formal Judgment.
 

      Tokyo District Court, Civil Division 47

                            Presiding Judge   Judge Yoshiyuki MORI
                                                     Judge Michiya ENOTO
                                                     Judge Hiroki MORISHITA