Tokyo District Court's Decision of May 16,
2000
on Record
Producers' Reproduction Right
translated by Takeo HAYAKAWA*
1998 (wa) No. l7018
A suit for an injunction
against a copyright neighboring right infringement etc.@
D E C I S I O N
Plaintiff
Victor Entertainment K. K.
represented by Motoo NISHIMURA, President
Plaintiff
King Record K. K.
represented by Nobuo IKEGUCHI, President
Plaintiff
Toshiba E. M. I. K. K.
represented by Masaaki SAITO, President
Plaintiff
Japan Crown K. K.
represented by Kazutaka YASUIKE, President
Plaintiff
K. K. Warner Music, Japan
represented by Mitsuaki TSUNEKAWA, President
Plaintiff K. K. B. M. G. Fun
House (formerly styled K. K. Fun House, successor to
K. K. B. M. G., Japan)
represented by Kazunaga NITTA, President
Plaintiff
Universal Victor K. K.
represented by Hiroyuki IWATA, President
Plaintiff
Avex K. K.
represented by Tatsumi YODA, President
Plaintiff in intervention
(Intervenor)
Japan Record Association, Inc.
represented by Nobuo IKEGUCHI, Director
Counsel for the Plaintiffs
and the Intervenor
Takashi YAMAMOTO, Attorney at Law
Tetsuo MAEDA, Attorney at Law
Yoshitake ADACHI, Attorney at Law
Defendant K. K.
Daiichi Kosho
represented by Tadahiko HOSHI, President
Counsel for the above
Defendant
Akihiko HARA, Attorney at Law
Michio UENO, Attorney at Law
Wakaba HARA, Attorney at Law
Jun USAGAMI, Attorney at Law
Defendant Japan
Digital Broadcast Service K. K.
represented by Hiroya, MITA, President
Counsel for the above
Defendant
Yuko NOGUCHI, Attorney at Law
Haruka SHIBUYA, Attorney at Law
Haruyasu UCHIDA, Attorney at Law
Takuya IIZUKA, Attorney at Law
1 The plaintiffs' claims are all dismissed.
2 Out of the costs of litigation, that part which was incurred
by the intervenor shall be borne by the intervenor, and the rest by the rest of
plaintiffs.
1 The defendants are enjoined from transmitting to the public
in digital signals the respective sound sources on the accompanying list of
sound sources in the public transmission service performed by defendant K. K.
Daiichi Kosho under the commercial title of "STAR Digio 100"
(Channels 400--499) as one of the satellite broadcast services "Sky
PerfecTV" of defendant Japan Digital Broadcast Service K. K.
2 Defendant K. K. Daiichi Kosho is enjoined from producing any
media in which any sound source on the accompanying list of sound sources is
stored.
3 Defendant K. K. Daiichi Kosho is ordered to abandon any
media in which any sound source on the accompanying list of sound sources is
stored.
4 The defendants are ordered to pay to each plaintiff on joint
and several liability the sum of \ 15 million with an interest of 5 % per annum
from August 7, 1998 to the day of full payment.
I Basic facts (facts with bracketed evidence numbers affixed
to them are established by so indicated evidence. Facts without such evidence
numbers are facts about which there is no dispute between the parties.)
1 Parties
(1) Plaintiffs are all kabushiki kaisha (joint stock
companies, corporations) which have for their purpose the planning, production
and marketing of records (gist of the whole argument).
(2) Defendant K. K. Daiichi Kosho (hereinafter
"defendant Daiichi Kosho") is a kabushiki kaisha which has for its
purpose the operation of the business of, and the management of
telecommunication facilities for, transmitting sounds, images, signals, etc.
(3) Defendant Japan Digital Broadcast Service K. K.
(hereinafter "defendant Japan Digital") is a kabushiki kaisha which
has for its purpose the conduct of business as a program-supplying broadcaster
under the Broadcast Law.@
Plaintiffs, who were the first to fix the
performance of the respective pieces of music (hereinafter "the instant
respective sound sources") on the respective records on the accompanying
list of sound sources (hereinafter "the instant respective records"),
are owners of the copyright neighboring right (the record producers' right) in
the instant respective records (A 40, A 4l (1--9), gist of the whole argument).
3 Defendants'
conduct
(1) Defendant Daiichi Kosho as a program-supplying
broadcaster under the Broadcast Law, 2 iii/5, for which non-party K. K. Japan
Satellite Systems (hereinafter "non-party Japan Satellite") is a
facility-supplying broadcaster under the Broadcast Law, 2 iii/4, is
transmitting in digital signals to the public for a fee radio musical programs
(entitled Daiichi Kosho STAR Digio 100), (hereinafter "the instant programs")
in channels 400--499 of the communications satellite broadcast service
"Sky PerfecTV," and the instant respective sound sources are
transmitted to the public in the instant programs.
(2)
Defendant Japan Digital, with regard to the public transmission of the
instant programs, performs functions described in (4) below, as an agent of
defendant Daiichi Kosho, a program-supplying broadcaster, or by non-party Japan
Satellite, a facility-supplying broadcaster.
(3) The instant programs are processed as follows, when
music recorded on commercial records (including the instant respective sound
sources) is transmitted to the public:
(i) Analog reproduction and digital conversion
A music CD is reproduced in analog
signals, which are then converted into digital signals.
(ii) Condensation
Those digital signals are condensed
on a computer according to a prescribed standard (downsized by putting data
together).
(iii) Storage in the storing server
The digital signals so condensed are
stored in the storing server.
The storing server is held by
defendant Daiichi Kosho under a lease from a lease company (B16) for its
management and utilization as its equipment.
(iv) Programming (broadcast program compiling) and
inputting into the programming server
Programs are compiled for the
respective channels, and then the contents are inputted into the programming
server in the form of programming data.
(v) Transmitting to and storing in the transmitting
server
The programming server
accesses the storing server, and causes it to transmit needed music data to
several transmitting servers according to the inputted programming data. The
music data from the storing server are then stored in the transmitting servers.
(vi) Multiplexing
The music data from the
transmitting servers are multiplexed. In other words, every thirteen single
streams for the respective channels (elementary streams) are combined into one
stream of data (transport stream).
This makes it possible for a
certain limited volume of electric waves to transmit more data to the public.
(vii)
Scrambling
The multiplexed music data are
then scrambled.
(viii)
Adding error marks and interleave processing
The scrambled music data get
error marks added to them, and undergo interleave processing.
Adding error marks means
adding marks so that digital data lost in transmission due to noise may be
automatically restored, and interleave processing means a technique for
changing the order of data in advance in order to enhance the accuracy of such
data restoration.
(ix) Conversion
The music data are
transformed, or converted into electric waves.
(x)
Transmission to the satellite (uplink)
The electric waves produced by
such conversion are transmitted from the antenna of the ground station to the
communications satellite.
(xi)
Amplification by the satellite and transmission to the public
The electric waves transmitted
from the antenna of the ground station are received by the receiving antenna of
the communications satellite, amplified by the relay apparatus it carries, and
then transmitted to the ground.
(4) Out of the
steps of processing described in (3) above, steps (i)--(v) and (vii) are under
the charge of the program-supplying broadcaster, defendant Daiichi Kosho, but
it performs steps (i)--(v) only, delegating defendant Japan Digital to perform
step (vii) as well as to monitor the mechanical equipment in steps (iii)--(v).
Also in (3) above, steps (vi) and
(viii)--(xi) are under the charge of the facility-supplying broadcaster,
non-party Japan Satellite, but it performs step (xi) only, delegating defendant
Japan Digital to perform steps (vi) and (viii)--(x).
4 Signal
processing in the receiving tuner
(1) In the instant programs, the music data are processed as
described in (3) above, transmitted to the ground, received by the receiving antenna of each recipient, and
processed in his receiving tuner as follows before they are outputted in the
form of music from the speaker:
(i) The electric waves are reconverted into digital
data.
(ii) By means of error marks and interleave, errors
are identified and corrected.
(iii) Scrambling is undone.
(iv) Multiplexing is undone. The signals are taken out from the respective channels.
(v) Condensation is undone.
(vi) Digital signals are converted into analog
signals.
(2) Out of the steps of processing in the receiving tuner as
in (1) above, music data are stored during steps (ii)--(v) in the random access
memory (hereinafter RAM)(A 39 (1 and 2), gist of the whole argument).
1 Plaintiffs'
allegation of defendants' infringement of the copyright neighboring right
(1) Infringement of the reproduction right in the
storing server
Defendant Daiichi Kosho stores in
the storing server digital signals of the instant respective sound sources in
the instant programs when it transmits them to the public (I 3 (3) (iii)). This
conduct constitutes an infringement of the reproduction right plaintiffs have
in the instant respective records as record producers (Copyright Law, 96).
(2) Infringement of the reproduction right by aiding
or abetting unlawful private reproduction
Defendants jointly aid or abet recipients
in recording on MDs the instant respective sound sources in the instant
respective programs by transmitting them to the public. This conduct
constitutes an infringement of the reproduction right plaintiffs have in the
instant respective records as record producers (Copyright Law, 96).
(3) Infringement of the reproduction right in the
receiving tuner
Defendants jointly store the instant
respective sound sources in the instant programs in RAM in the recipient's
receiving tuner by transmitting them to the public (I 4 (2) above). This
conduct constitutes an infringement of the reproduction right plaintiffs have
in the instant respective records as record producers (Copyright Law, 96).
2 Plaintiffs'
claims for relief
It is on the following grounds that plaintiffs make
the claims against defendants as stated in the respective paragraphs of plaintiffs'
claims for relief above:
(1) Claim for
relief in the first paragraph
With regard to the infringement of the reproduction right described in 1
(2) & (3) above, plaintiffs demand as a remedy by cessation or prevention
under the Copyright Law, 112 (1) that defendants be enjoined from the public
transmission that constitutes the infringement as described in the first
paragraph of plaintiffs' claims for relief above.
(2) Claim for
relief in the second paragraph
(i) With regard to the infringement
of the reproduction right described in 1 (1) above, plaintiffs demand as a
remedy by cessation or prevention under the Copyright Law, PPQ (1)
that defendant Daiichi Kosho be enjoined from the production of media that
constitutes the infringement as described in the second paragraph of
plaintiffs' claims for relief above.
(ii) With regard to the infringement of
the reproduction right described in 1 (2) & (3) above, plaintiffs demand as
a remedy by measures for cessation or prevention under the Copyright Law, 112
(2) that defendant Daiichi Kosho be enjoined from the production of media used
for infringement as described in the second paragraph of plaintiffs' claims for
relief above,
(3) Claim for relief in the third paragraph
(i) With regard to the infringement of the
reproduction right as described in 1 (1) above, plaintiffs demand as a remedy
by abandonment of objects made by infringement under the Copyright Law, 112
(2) that defendant Daiichi Kosho be ordered to abandon the media as described
in the third paragraph of plaintiffs' claims for relief above.
(ii) With regard to the infringement of
the reproduction right described in 1 (2) & (3) above, plaintiffs demand as
a remedy by abandonment of objects used solely for infringement under the
Copyright Law, 112 (2) that defendant Daiichi Kosho be ordered to abandon the
media described in the third paragraph of plaintiffs' claims for relief. (4) Claim for relief in the fourth
paragraph
(i) With regard to the infringement of the
reproduction right described in l (2) & (3) above, plaintiffs demand as a
remedy by an award of damages that defendant Daiichi Kosho be ordered to pay to
each plaintiff the sum of \ 15 million with an annual interest of 5 % under the
Civil
Code from August 7, 1998
(the day following service of complaint) to the day of full payment.
(ii) With regard to the infringement of the
reproduction right described in l (2) & (3) above, plaintiffs demand as a
remedy by an award of damages that defendant Japan Digital be ordered to pay to
each plaintiff the sum of \ 15 million with an annual interest of 5% under the
Civil Code from August 7, 1998 (the day following service of complaint) to the
day of full payment.
III Issues
1 Is defendant
Japan Digital a principal actor in the transmission of the instant programs to
the public?
2 Does
defendant Daiichi Kosho infringe the reproduction right in its storing server?
(Is the Copyright Law, 44 (1) made applicable here mutatis mutandis by virtue
of 102 (1)?).
(1) Does the transmission of the instant programs qualify as
"broadcasting"?
(2) Does defendant Daiichi Kosho qualify as a "broadcaster"?
(3) Does storing music data in the instant programs in the storing server
qualify as "temporary recording"?
3 Is the
reproduction right infringed by defendants' aiding or abetting unlawful private
reproduction?
(1) Does a recipient's recording the instant respective sound sources on MDs
qualify as reproduction for private use permissible under the Copyright Law,
30 (1)?
(2) Do defendants aid or abet recipients of the instant programs in recording
the instant respective sound sources?
(3) Is an injunction the right remedy against an aider or abettor of
reproduction?
4 Do defendants
infringe the reproduction right in the receiving tuner? (Does storing music data in RAM in the receiving tuner qualify as
"reproduction"?)
5 What is the
assessment of the damages for the loss plaintiffs suffered?
1
On issue l
(1) Defendant Japan Digital's argument
(i) Since defendant Japan Digital is not a principal actor in the public
transmission of the instant programs as stated below, the claim for an
injunction against the public transmission as mentioned in the first paragraph
of plaintiffs' claims for relief above is baseless.
(a) There are two kinds of broadcasters working in communications satellite
broadcasting by means of which the transmission of the instant programs is
made: program-supplying broadcasters and facility-supplying broadcasters. The
Broadcast Law as amended in 1989 introduced a dichotomy between broadcasting
station administrators (hard operators) and program compilers (soft operators), i. e., between facility-supplying broadcasters and program-supplying
broadcasters.
In communications satellite broadcasting
in which a sharp line is drawn between soft operators and hard operators, it is
program-supplying broadcasters that should properly be held to be principal
actors in broadcasting for the purpose of the Copyright Law. In contrast to the
Broadcast Law, which as public law has for its purpose regulation of broadcasting
for the public welfare and its sound development (Broadcast
Law, 1jAthe Copyright Law which as private law has for its purpose protection of
fair use of cultural products such as literary writings and of the rights of
authors so as to contribute to the development of culture. The two laws that have different
purposes need not necessarily be identically interpreted in determining who
should be enjoined as principal actors in broadcasting. It should be determined
in the light of the applicable law's purpose with reference to particular acts
involved in broadcasting. In considering who are such principal actors in the
public transmission under the Copyright Law, emphasis should be laid on their
relations to the contents of the work protected by the Law. The current
Broadcast Law, under its dichotomous system of broadcasters, imposes on
facility-supplying broadcasters a duty to perform a broadcast service requested
by program-supplying broadcasters, and not to refuse the request without
justifiable reason (52/9), and it
exempts facility-supplying broadcasters from the application of provisions
concerning responsibility for broadcast program compiling (52/12). In view of these facts program-supplying broadcasters that utilize
and compile contents for broadcasting are the only principal actors in
broadcasting for the purpose of the Copyright Law. And an entity which, like a
facility-supplying broadcaster, does not utilize or compile contents, but
merely performs broadcasting within the meaning of the Broadcast Law should not
be classed with the other kind of broadcasters.
(b) With regard to the public transmission of the instant programs, as
against defendant Daiichi Kosho as a program-supplying broadcaster, and non-party
Japan Satellite as a facility-supplying broadcaster, defendant Japan Digital is
an entity called "platform" that is simply performing services
delegated by these broadcasters as described in Pt 2 I 3 (4), without doing any acts like utilizing or compiling
contents which may be subject to the copyright neighboring right. It should not
be considered to be a principal actor in the public transmission.
In this connection, on the basis of the
fact that defendant Japan Digital is engaged in the so-called
"uplink," or in the transmission of electric waves from the ground to
the satellite, plaintiffs claim that the defendant can properly be enjoined.
Seeing, however, that the uplink is a service delegated by a facility-supplying
broadcaster, and that a facility-supplying broadcaster is exempt from the
application of provisions concerning responsibility for broadcast program
compiling (Broadcast Law, 52/12), defendant Japan Digital should
not be considered to be a principal actor in the public transmission, just
because it is engaged in the uplink.
(ii) Defendant Japan Digital has no power to give instructions about the
contents of defendant Daiichi Kosho's programs or to prohibit broadcasting
them. Even if it finds the contents of a broadcasting violative of another's
rights, it has no power to avoid transmitting them. Thus freedom of avoidance,
which is an element of negligence, is lacking.
Furthermore, defendant Japan Digital is delegated by
non-party Japan Satellite to operate the ground station. By the Broadcast Law,
52/9, a facility-supplying broadcaster is not allowed to refuse to perform the
transmission of broadcast programs delegated by a program-supplying
broadcaster, so that non-party Japan Satellite cannot refuse to perform the
broadcasting of the instant programs delegated by defendant Daiichi Kosho.
Defendant Japan Digital, too, which is delegated by non-party Japan Satellite
to operate its ground station is bound to execute the duty incumbent on
non-party Japan Satellite under the Broadcast Law. As defendant Japan Digital
is thus not free to refuse to perform the delegated broadcasting of the instant
programs, negligence cannot be attributed to it because freedom of avoidance is
lacking.
The foregoing will show that, granting that defendant
Japan Digital's public transmission of instant respective sound sources in the
instant programs infringes plaintiffs' copyright neighboring right, it is not
liable for damages, because it is free from negligence in its public
transmission.
(2) Plaintiffs'
argument
(i) Defendant Japan Digital as a "platform" delegated by defendant
Daiichi Kosho not only
takes care of customers by,
for instance, collecting charges for transmitting the instant programs and
provides a broadcasting facility to that defendant that has no such facility,
but also performs an uplink function by transmitting the data of the instant
programs from the ground to the satellite.
Since at least that part of its conduct which
forms its uplink is a public transmission, defendant Japan Digital qualifies as
a principal actor in the public transmission of the instant programs.
And because defendant Japan Digital can choose
to prevent the public transmission by discontinuing the uplink, its argument
that plaintiffs' claim for an injunction against the public transmission of the
instant programs as stated in the first paragraph of their claims for relief is
baseless is indeed baseless.
(ii) Defendant Japan Digital, together with defendant Daiichi Kosho, is
offering a fax service to their recipients as to the contents of the instant
programs in the full knowledge that the instant respective records are used in
the instant programs. Based on its contract of delegation with defendant
Daiichi Kosho, it is engaged in acts of infringing the copyright neighboring
right as described in 3 and 4 below, but the contract of delegation does not
release it from liability for continuing illegal delegated acts. Granting that
a facility-supplying broadcaster is bound by law to abstain from being involved
in contents of programs, the fact does not release it from liability for
continuing illegal acts, either.
Accordingly, defendant Japan Digital's
negligence in its acts of infringement on the copyright neighboring right as
described in 3 and 4 below is evident, so that the defendant is liable for
damages.
2
On issue 2
(1) Defendant
Daiichi Kosho's argument
(i) The transmission of the instant programs to the public, as it is a
wireless public transmission intended for simultaneously reception by the
public of the communication with identical contents, falls within the
definition of "broadcasting" under the Copyright Law, 2 (1) viii
and consequently of the "broadcasting" under 44 (1), too. At
the time of amending the Copyright Law by Law No. 86 of 1997 a dichotomous
system of analog and digital broadcasting, though brought up for discussion,
was not adopted eventually, so that no distinction has been made in the
definition of "broadcasting." Interpreted against this background, there is no
reason why the transmission of the instant programs should be excluded from the
definition of "broadcasting" because they are transmitted in digital
signals.
(ii) Defendant Daiichi Kosho is a facility-supplying broadcaster under the
Broadcast Law as approved by the Minister of Posts and Telecommunications with
regard to the public transmission of the instant programs, and is also a
"broadcaster" under the Copyright Law, 2 (1) ix, and a "broadcaster" under 44 (1), too, because its business is the public transmission of the instant
programs that falls within the definition of "broadcasting" under the
Copyright Law as stated in (i) above.
(iii) The word "temporary" in the Copyright Law, 44 (1) should be
interpreted to mean "not permanent." Since in the instant programs
the music data are not actually permanently stored in the storing server as
stated below, the storage is none other than "temporary sound
recording" within the meaning of the provision.
(a) A hard disk of the storing server used in the instant programs has a
capacity of one terabyte and is capable of storing music data up to the maximum
of only 100,000 pieces of music, suppose each piece lasts 5 minutes. In
actuality, however, it is not used up to the maximum, but up to 40,000 to
70,000.
(b) The music data to be stored in the storing server are limited to pieces
of music on some definite schedule, and such music data are stored in
coordination with some definite schedule for broadcasting.
(c) All that is stored in the storing server is deleted as a matter of
routine when the scheduled broadcasting is over. The storing server, with a
limited capacity as stated above, has to store a large volume of new music data
for new programs because programs are changed each week as a rule. This need
cannot be filled without deleting the existing music data, so that, except
those concretely scheduled for broadcasting or presently being broadcast, all
the music data are deleted in the order of broadcasting dates (the older, the sooner).
(d) Since about the end of August 1998 during the pendency of the instant
suit, the storing server has been checked at least every three weeks to delete
any music data not broadcast for more than three months as a rule, with the
result that that most music data are deleted within six months of their
storing.
(iv) According to
its foregoing account, defendant Daiichi Kosho's act of storing in the server
the music data in the instant respective sound sources is allowed as a
broadcaster's temporary fixation for broadcasting under the Copyright Law, 44
(1) made applicable mutatis mutandis by virtue of 102 (1), so that it does not infringe the reproduction right
that plaintiffs have in the instant respective records as record producers.
(2) Plaintiffs'
arguments
(i) The
transmission to the public of the instant programs does not fall within the
definition of
"broadcasting" under the Copyright Law as stated below:
(a) What the Copyright Law conceived as "broadcasting" at the time
of its enactment was broadcasting by NHK and commercial TV and radio stations
which were actually in the broadcasting business in 1970 or earlier when the
Law was in the legislative stage. The broadcasting business in all its facets
was strongly characterized by service in the public interest and simultaneity
of reporting (it was supposed to contribute to the formation of public
opinion and through it to the advance of democracy by impartial reporting of
facts and opinions, and also to report simultaneously by audio-visual or
auditory means on matters of people's common interest, thereby contributing to
disaster prevention among others). The
broadcasting business often used records in broadcast programs (sometimes parts of music only or talk-superimposed music). Since it was analog broadcasting, it was in sound quality not good
enough to save the need to buy records, and it used records in an
"ephemeral" way, so that it had the side effect of creating
consumers' demand for records and promoting the sale of records.
It was such broadcasters and such
broadcasting that the Copyright Law allowed to freely use others' works,
performances and records with certain limitations (44, 92
(2), 93, 94, 95, 97, 102 (1)),
This is the outcome of "reasonable coordination of relative
interests of performers as interpreters of works, record producers as
transmitters of such interpretations, broadcasters and wire broadcasters"
as contemplated by the copyright neighboring right system under the Copyright
Law that has it for its purpose "to secure the protection of the rights of
authors and others, having regard to a just and fair exploitation of these
cultural products, and thereby to contribute to the development of
culture." A communication
business, even though it is a wireless one, whose character is widely different
from that of "broadcasting" as supposed in the value judgment on
which the said coordination rests, is not entitled to free use of records or
performances under the provisions cited above.
Furthermore, the 1997 Amendment to the Copyright
Law amended or supplemented the definition clause on "broadcasting,"
"wire broadcasting," "public transmission,"
"interactive public transmission," "making transmittable" (2 (1) vii/2, viii,
ix/2, ix/4, ix/5), and created for record producers "the right to make
transmittable" (96/2). This amendment held
"broadcasting" to be a part of "public transmission," and
out of "public transmission" made "broadcasting" alone
eligible for the privilege under 44 (1), while on the other hand as to the
"interactive transmission" out of "public transmission,"
the amendment gave record producers the "right to make
transmittable," but did not give them the privilege of temporary fixation
at the time of public transmission which broadcasters enjoy. Now
"interactive transmission" includes Internet broadcasting (a program presenting service in which images and sounds with identical
contents are transmitted to numerous persons over Internet). It has two types: the pull type in which a user has to operate his
computer each time to download information from his web site, and the push type
in which he does not have to do so, because his computer automatically
downloads information from his web site according to the schedule set by him in
advance. So far as the audience choose
the same genre etc., the push type allows identical contents to be
automatically transmitted at the same time, operation being automatically made
each time to access the server without the recipient's hand-operation. In
Internet broadcasting of the push type, therefore, record producers may well
claim the licensing right under the Copyright Law.
As seen above, "broadcasting," a kind of
"public transmission" as it is, is beyond reach of the licensing
right of record producers, and broadcasters are privileged to make temporary
fixation, whereas "interactive transmission" such as Internet
broadcasting, if it is of the push type, is subject to the licensing right of
record producers, and Internet broadcasters are not allowed to make temporary
fixation (nor are those engaged in other types of public
transmission unlike broadcasters). This can only
be explained by the reason that "broadcasting" as clearly distinct
from Internet broadcasting and other types of public transmission has a
surpassing claim to free use of others' cultural products. Hence it follows
that only those types of public transmission of which the above reason holds
true qualify as "broadcasting" under the Copyright Law.
(b) From the above point of view, the question whether the transmission to
the public of the instant programs qualifies as "broadcasting" under
the Copyright Law is examined in the light of its actual state as described as
follows:
(aa) The instant programs are a service intended for profit making by
transmitting for a fee to the public according to individuals' tastes and
choices something of value that could save the need to buy commercial
records. Besides, since, such
transmission, being limited to recipients who in order to receive the instant
programs in particular has entered into a contract with Japan Digital, its
business is not only irrelevant to the "advance of democracy" or
"contribution to disaster prevention among others," but also
indistinguishable from a common entertainment business such as the sale of
commercial records or on-demand transmissions.
(bb) In the instant programs, commercial records produced by others are
transmitted in full size to the finish without any additional broadcast program
compiling (such as cutting off the introduction to a piece of music,
superimposing talk on it, or breaking it off midway). The
greater part of them are only desultorily repeated transmissions of commercial
records.
(cc) Moreover, in the instant programs, such transmissions are made in digital
signals. Digital transmissions, being free from deterioration of sound quality,
give recipients "sound broadcasting on the CD level" that would save
the need to buy commercial records, as opposed to traditional analog
broadcasting whose sound quality is likely to heighten the need to buy
commercial records, rather than to save it.
(dd) In the instant programs, as many as a hundred channels are set up, music
is divided into as many genres with
the result that recipients may receive music of the genre to his taste and of
his choice. And in each channel a set of pieces of music is transmitted
continuously in a cycle of 2, 3 or 4 hours as often as 12, 8 or 6 times a day,
or 84, 56, or 42 times a week. A recipient can avail himself of the fax service
of defendant Daiichi Kosho to get information as to titles, artists, sequences,
schedules etc. so that he can choose the music and the time out of those 84, 56
or 43 times for listening or recording on media such as MDs.
(ee) The foregoing shows that the
transmission to the public of the instant programs barely qualify as
"broadcasting" as contemplated by the Copyright Law in that it adopts
"wireless communication" as a means of transmitting contents to the
public for a fee. But it is in reality nothing but a service operated to
transmit to subscribers for a fee contents of musical CDs to their liking, so
that the instant programs are a far cry from "broadcasting" as
contemplated by the Copyright Law which is supposed to realize the
"reasonable coordination of relative interests among copyright owners,
performers, record producers, and broadcasters" in the light of its
purpose "to secure the protection of the rights of authors and others,
having regard to a just and fair exploitation of these cultural products, and
thereby to contribute to the development of culture."
Furthermore, the transmission of the instant
programs to the public is distinguished from general broadcasting in that its
use of records is far from temporary or ephemeral. It may really be interactive transmission itself (including Internet broadcasting of the push type in which a recipient has
not to access the server personally), which is
subject to record producers' right of making transmittable. Even if it is
otherwise, there is nothing in the Copyright Law that can justify anyone in
freely transmitting commercial records (and even
enjoying the privilege of temporary fixation). Hence
we may say at least that it does not qualify as "broadcasting" that
can enjoy that privilege under the Copyright Law.
(c) The Copyright Law in 2 (1) viii defines broadcasting as "the public
transmission of radio communications intended for simultaneous reception by the
public of the transmission having the same contents." The public transmission of the instant
programs, however, does not fall within this definition.
As stated above, in the instant programs, there are as
many as a hundred channels, and as many genres of music, so that a recipient
can receive music of the genre to his taste and of his choice. In each channel
a set of pieces of music is transmitted continuously in a cycle of 2, 3 or 4
hours as often as 12, 8 or 6 times a day, or 84, 56 or 42 times a week, and
defendant Daiichi Kosho through its fax service gives a recipient information
on titles, artists, sequences, schedules etc., so that he can receive or record
what he wants at the time he chooses out of those 84. 56 or 42 times. In the transmission to the public of
the instant programs recipients can choose out of a hundred genres of music, so
that it cannot be "transmission having the same contents" to all of
them. As the same set of pieces of music is transmitted repeatedly and
continuously 84, 56 or 42 times and each recipient can choose his own time for
reception to suit his convenience, so that "simultaneous reception"
is impossible.
In short, the transmission of the instant
programs allows a recipient to receive pieces of music to his taste and to his
liking at his convenience, and thus it is nothing less than on-demand
transmission which is subject to record producers' right to make transmittable,
or practically the same thing. Since it does not meet the requirement of
"simultaneous reception by the public of the transmission having the same
contents," it does not come within the definition of
"broadcasting."
(ii) Defendant Daiichi Kosho does not qualify as a "broadcaster"
with regard to the instant
programs.
(a) As stated above, now that the transmission of the instant programs to the
public is not "broadcasting," there is no doubt that defendant
Daiichi Kosho is not a "broadcaster."
(b) In CS broadcasting many specialized channels were set up, in each of
which there were two distinct branches of entities engaged in it: broadcasters
which actually transmitted electric waves and entities which compiled broadcast
programs. The Broadcast Law as amended in 1989 called both of them
broadcasters: facility-supplying broadcasters and program-supplying
broadcasters respectively, characterizing the former as entities actually
engaged in transmitting electric waves and the latter as entities which
delegate the former to transmit broadcast programs. Thus the distinction dates
only from the 1989 amendment to the Broadcast Law, but in 1970 when the
Copyright Law was enacted, the only then known broadcasters were now so-called
facility-supplying broadcasters, with the logical consequence that broadcasters
within the meaning of the Copyright Law should properly include
facility-supplying broadcasters only, to the exclusion of program-supplying
broadcasters.
Hence defendant Daiichi Kosho, a mere
program-supplying broadcaster, does not qualify as a "broadcaster"
for the purpose of the Copyright Law.
(iii) Storing music data in the instant
programs in the server does not qualify as "temporary recording for
broadcasting" under the Copyright Law, 44 (1), as stated below:
(a) The Copyright Law, 44 (1) was enacted to implement the Berne Convention
for the Protection of Literary and Artistic Works as amended by the Paris Act,
1971 (hereinafter the Berne Convention), 11/2 (3), and "temporary"
sound or visual recording as used in the cited statutory section is the
Japanese equivalent of "ephemeral recording" as used in the cited
conventional provision. Now "ephemeral" means "like an
ephemerid, single-day-lived, for one day only, transitory, evanescent."
The reason why broadcasters are allowed to make
"temporary sound or visual recording for broadcasting" by the
Copyright Law, 44 (1) follows:
(aa) With regard to temporary sound or visual recording for broadcasting, it
is not appropriate to require, in addition to the requirement of broadcast
licenses, that licenses be obtained from copyright owners (practically such licenses are implied).
@@@@@@@@@(bb) Transmission
of programs video-taped or sound-taped in advance instead of live broadcasting
is in practice the rule, so that temporary fixation indispensable for
broadcasting is an imperative necessity (as a
technical substitute for live broadcasting).
(cc) Ephemeral recording is so short-lived and evanescent that infringement by
such visual or sound recording is negligibly trifling (reproduction
not in a big way and scarcely any adverse effect upon the reproduction right), so that broadcasting of a sound or visual recording made in advance as a
substitute for live broadcasting is permissible.
Hence temporary fixation should be allowed only
to the extent that it is "temporary fixation indispensable for
broadcasting" as a substitute for live broadcasting. If, however, sound or visual recording
is made for general broadcasting, for common use in a number of different
programs, it cannot be deemed to be a "temporary fixation for
broadcasting" as a limitation on the reproduction right allowed from the
policy considerations set forth above.
(b) In the instant programs, storing music data in the storing server is
intended to achieve efficiency in multichannel broadcasting. Such storage of
music data is detached from the respective broadcast-program compiling programs
so that music data adopted in any compiling program can be drawn from those
stored in the storing server for transmission, with result that the same music
can be put to common and general use in many programs
Music data stored from the first like this for
the purpose of efficiently using them in common in many programs cannot be said
to be in a state of "ephemeral" recording which is deleted as soon as
the broadcasting of a program is over. Such recording does not qualify as
"temporary fixation for broadcasting" as a permissible technical
substitute for live broadcasting.
The music data in the instant programs stored in the
server are actually transmitted repeatedly as often as 84, 56 or 42 times a
week. They are not deleted s soon as a transmission is over, but
are used and transmitted in
many other programs and channels. Their storing is far from "temporary
fixation for broadcasting."
Deletion is sometimes made from the music data in the
instant programs stored in the server, but it is technically necessitated by
the limited memory capacity of 100,000 pieces of music. A piece of music, regardless of its
time of recording, is deleted when its commercial value comes to an end. It is preserved as long as popularity
and demand last; there are really not a few long-lived ones. Those presently in
store in the server, if again adopted in a broadcast program compiling program,
will continue to be preserved for use in different programs. Such storage in the server is by no
means fixation as "a technical substitute for live broadcasting"
intended to be deleted as soon as its broadcasting is finished.
It may be added that the server in the instant
programs always has in store pieces of music to the immense number of about
100,000 (40,000 at a minimum). Those
countless pieces of music are stored in such a condition that each of them is
capable of being instantly retrieved by the identification data it bears if
adopted by a broadcast-program compiling program. This storage is nothing short
of a "database" of music. It is anything but "temporary fixation
for broadcasting for broadcasting" in the 44 (1) sense of transient,
evanescent, ephemeral recording to which the policy considerations apply:
infringement of the right of sound or visual recording is negligibly trifling
(reproduction not in a big way, scarcely any adverse effect upon the
reproduction right).
(iv) The foregoing will show that defendant Daiichi Kosho's storing in the
server music data in the instant respective sound sources in the instant
programs is not "temporary fixation for broadcasting by broadcasters"
permissible under 44 (1). Thus it infringes the reproduction right plaintiffs have as record
producers.
3
On issue 3
(1) Plaintiffs' argument
(i) A recipient's sound recording of the instant respective sound sources on
MDs does not qualify as private reproduction permissible under the Copyright
Law, 30 (1). Thus it infringes the reproduction right plaintiffs have as
record producers in the instant respective records.
(a) The Copyright Law, 30 (1) is based on the Berne Convention, 9 (2):
"It shall be a matter for legislation in the countries of the Union to
permit the reproduction of such works in certain special cases." The above
cited subsection of the Copyright Law as implementing "legislation
reserved to a country of the Union" is valid subject to the proviso to the
subsection of the Convention: "provided that such reproduction does not
conflict with a normal exploitation of the work and does not unreasonably prejudice
the legitimate interests of the author." Hence any reproduction that fails
to satisfy this requirement is not private reproduction permissible under 30
(1).
(b) The circumstances stated below turn the transmission of the instant
programs to the public into a commercial record transmission service which in
reality makes money by making it possible for recipients to make private
reproductions.
(aa) Full-size transmission of CDs on the market
Commercial records are used in
most transmissions. In the
traditional analog radio broadcasting there was not full-size broadcasting,
talk was superimposed, or otherwise care was taken not to prejudice interests of
copyright owners in compiling broadcast programs. Now the instant programs are
transmitted in full size without any additional broadcast program compiling, so
that a recipient can get high fidelity duplicates of CDs on the market.
(bb) Full-size transmission of album CDs on the market
Album CDs on the market are
also transmitted in full size, though a week's portion is fraudulently divided
into two, so that a recipient can get high fidelity duplicates of the originals.
(cc) Digital transmission
The instant programs are
transmitted in digital signals, so that they do not deteriorate in the quality
of sounds, a thing which allows a recipient to record them on MDs mad get high
fidelity duplicates.
(dd) Near-on-demand transmission
With regard to 70 out of 100
channels, the instant programs are repeatedly transmitted in a cycle of several
dozens of pieces of music each, lest any recipient should miss any of them.
(ee) Advance announcements
As to those 70 channels
repeatedly transmitted, recipients enjoy a fax service of furnishing
information on performance schedules exact to a second on artists and titles in
order to facilitate their slated or editorial sound recording.
(ff) 60 minutes' transmission
Common recording media
such as MDs are almost so standardized as to record sounds up to 60 minutes, so
that the instant programs give a pause every 60 minutes so as to make 60
minutes' sound recording on such media possible.
(gg) Transmission of new records
Record producers are vested
with a right of lending for one year and a right to remuneration for 49 years
thereafter. As to the one year's lending right, record producers may deny
licenses to record rental shops as to traditional Japanese music, single CDs up
to three days, as to album CDs up to three weeks, and as to Western music up to
one year.
In contrast, the instant
programs use new records right after their sale. The sale of new records, which
depends in great measure on a certain period of time after their release, is
seriously affected by such a service, because it directly competes with the
sale of records.
(c) Moreover, in view of the following circumstances the instant programs may
be said to be sneaking a free ride on the products of record producers:
(aa) CDs on the market cannot escape missing a business opportunity
The instant programs, as
stated above, win recipients by encouraging their private sound recording. The service mode of the instant programs
coupled with the receiving tuner generally equipped with a digital terminal is
like a "tape dubbing service" which cannot be regarded as private
sound recording.
Seeing that the instant
programs charge their recipients \ 1200 a month, while single CDs are sold at
the standard price of \ 1000 a piece, there is no denying that the sale of CD
suffers disastrously.
(bb) Limitations of the secondary
use system
Record producers have no right
to license secondary use. This necessarily tends to lower the fee for secondary
use, with the evident result that it falls short of adequate compensation for
their loss caused by missing a business opportunity for CDs on the market.
(cc) Limitations of the private sound recording compensation system
The instant programs, as
stated above, are a commercial record transmission service that encourages
private recording, and the sale of MDs as recording media are rapidly expanding
(1997 saw an output of 80 millions, of which 53 millions were all for
domestic consumption). From this we may say that the actual amount
of compensation for private sound recording (the
amount received from the Private Sound Recording Compensation Administration,
Inc. in 1997 was approximately \ 440 million) was
evidently insufficient to make up for the loss the record producers suffered by
missing a business opportunity for CDs on the market.
(d) "Normal use" of records is through the sale of records to the
public, but in view of the
instant programs as they
are actually transmitted to the public (see (i) (b) above), the act of a recipient who records the instant
respective sound sources so transmitted in the instant programs does not
qualify as "private reproduction" permissible under the Copyright
Law, 30 (1), because it is the making of an equivalent of and a substitute for
CDs on the market at a cost far below the purchase price of CDs, and because it
no doubt does "conflict with a normal exploitation of the work." Hence the recipient's sound recording
is illegal reproduction of the instant respective records.
(ii) The transmission of the instant programs to the public, as stated in (i) (b) above, is in reality a commercial record transmission service that
induces recipients to make illegal private reproduction. Furthermore, defendant
Daiichi Kosho (a) recommends in
its manual for recipients that they record sounds by connecting the receiving
tuner to audio recording media like MDs, and (b) offers a fax service to the recipients by giving advance announcements of
artists, titles and schedules to a second for their convenience in such
recording. Defendant Japan Digital (a) also recommends in its manual for recipients that they connect the
receiving tuner to audio recording media like MDs to "enjoy more
fun," and (b) fax to them
advance announcements of artists, titles and schedules to a second for their
convenience in audio recording.
These defendants, therefore, are aiding or abetting
recipients in illegally reproducing the instant respective sound sources on MDs
by transmitting those sound sources to the public in the instant programs.
(iii) An aider or abettor in infringing a copyright neighboring right, so far
as he is in a position to stay or prevent it, is "a person who infringes
or is likely to infringe a copyright neighboring right" in the words of
the Copyright Law, 112 (1).@But for defendants' transmission of the
instant respective sound sources to the public in the instant programs, a
recipient's reproduction would not happen. Defendants may then be said to be
"in a position to stay or prevent the recipient's reproduction.
Plaintiffs, therefore, are entitled to
seek an injunction that defendants refrain from the public transmission of the
instant respective sound sources in the instant programs.
(2) Defendants'
arguments
(i) The Copyright
Law. 30 (1), without any limitation in terms of kind or nature of works,
permits "private use," or "a user's personal use, family use, or
other similar uses within a limited circle," as legitimate, except where
reproduction is made by means of automatic recording machines placed for public
use. The legislative intent of this provision is to let petty-scale
reproduction in a small circle like a family go unpunished.
Since it is generally for personal use that a
recipient of the instant programs reproduces on MDs the instant respective sound sources transmitted to the
public, it is self-evident that such reproduction by the recipient comes under
the definition of reproduction for "private use" permissible under
the cited statutory provision.
Plaintiffs argue on the supposition that even if a
recipient's reproduction is for a private use, it can be turned into an illegal
use by the method or mode of reproduction, the kind or nature of the source of
reproduction (what is reproduced), the
quality of reproductions produced, etc. This must be an opinion all their own,
far removed from the letter and spirit of the Copyright Law, 30 (1). As stated
above, legal reproduction is no doubt distinguished from illegal reproduction
by what use a work is put to, i. e., by "whether or not it is for the
purpose of personal use, family use, or other similar uses within a limited
circle."
Plaintiffs also point to the digital recording by a
recipient of the instant respective sound sources in the instant programs as
one of the factors that cause "conflict with a normal exploitation"
of the instant several records.
But as this matter is already taken care of by the private sound
recording compensation system (Copyright Law,
30 (2)), this fact does not afford a basis for their contention that a
recipient's sound recording does not qualify as private reproduction.
(ii) Because recipients' sound
recording of the instant respective sound sources on MDs is
lawful under 30 (1) as
above stated, plaintiffs' argument that defendants are aiding or abetting them
in illegal reproduction by transmitting the instant respective sound sources to
the public in the instant programs is out of the question and does not merit
any consideration. (Defendants also dispute whether their public
transmission of the instant programs constitutes aiding or abetting.)
(iii) Since an injunction under
112 (1) can be issued only against a direct infringer, not against an aider or
abettor, it is doubly unwarrantable for plaintiffs to seek an injunction
against defendants as aiders or abettors in recipients' alleged illegal
reproduction in the first paragraph of their claims for relief.
(3) Separate
argument of defendant Japan Digital
Plaintiffs allege that defendant Japan Digital (a) recommends in its manual for recipients that they
connect the receiving tuner to audio recording media like MDs (in these words; "By connecting it to MDs you can enjoy more fun"), and (b) offers a fax
service for the convenience of recipients in audio recording by sending advance
announcements of schedules to a second, and in combination with such actions it
transmits the instant programs to the public, thereby aiding or abetting
recipients in illegal reproduction.
But "By connecting it to MDs you can enjoy more
fun" in (a) above as
quoted by plaintiffs is a mere statement suggesting the possibility of
reproduction; it is indeed far from an expression that "strongly
recommends private sound recording."
Defendant Japan Digital has nothing to do with the contents of the fax service
mentioned in (b). Besides,
defendant Japan Digital is not a principal actor in the instant transmission to
the public as stated in l (1) above.
Thus defendant Japan Digital is not guilty of either aiding
or abetting in illegal private reproduction as plaintiffs contend. Therefore, their accusation is evidently groundless.
4
On issue 4
(l) Plaintiffs'
argument
(i) The music data in the instant respective sound sources transmitted to the
public in the instant programs are stored in RAM installed in the receiving
tuner of a recipient when the signals are processed in the tuner in the
prescribed way (hereinafter the instant storage in RAM). Now the storage in RAM is "reproduction" within the meaning of
the Copyright Law, 2 (1) xv).
The current Copyright Law, 2 (1) xv defines
"reproduction" as "reproduction in a tangible form by means of
printing, photography, polygraphy, sound or visual recording or otherwise,"
and this provision was interpreted under the old Law as meaning
"everything capable of making a work directly or mechanically
perceptible." The current Law
on the basis of this traditional interpretation divided reproduction into
tangible and intangible reproduction, and limited reproduction to the former,
so that reproduction now means "everything in a tangible form capable of
making a work directly or mechanically perceptible."
Since RAM is an tangible medium capable of
electronically storing information, there is no denying that the instant
storage in RAM is reproduction under the Copyright Law. This is as true of Read
Only Memory (hereinafter ROM) which is
another tangible medium of electronically storing information, like a hard disk
or a floppy disk. RAM is distinct from ROM, however, in that information is
lost the moment electricity is turned off. The Copyright Law, as to the concept of reproduction, does
not put any limitations on the duration of a work's perceptibility, so that, as
stated above, "reproduction" under the current Copyright Law should
be interpreted as "everything in a tangible form capable of making a work
directly or mechanically perceptible." Thus storage in RAM is none the less reproduction for being
lost the moment electricity is turned off.
Japan is a signatory of the Berne Convention and the
Universal Copyright Convention as revised at Paris on 24 July 1971) (hereinafter UCC), and Japan's
Copyright Law should be interpreted as consistent with these Conventions. Now
they define "reproduction" without reference to manner or form, and
interpret electronic storage in RAM as reproduction.
(a) The Berne
Convention, 9 (1) reads: "Authors of literary and artistic works
protected by this Convention shall have the exclusive right of authorizing the
reproduction of these works, in any manner or form."
(b) UCC, 4/2 (1)
reads: "The rights referred to in article 1 include the basic rights
ensuring the author's economic interests, including the exclusive right to
authorize reproduction by any means, public performance and broadcasting."
(c) WIPO that
administers the Berne Convention and UNESCO that administers the UCC held a
second joint meeting of the "Governmental Specialist Committee" in
June 1982 (Japan was represented there), which
considered among others whether electronic storage in RAM is included in
reproduction, and adopted "A Recommendation for the Solution of Copyright
Problems Arising from the Use of a Computer System for Utilization or Creation
of Works" as guidelines for various countries. That recommendation holds
inputting of protected works into a computer system, or electronic storage in
RAM, to be included in "reproduction."
(d) At the
December 1996 meeting where Japan was represented, WIPO adopted "A
Declaration of an Agreement relative to the WIPO Copyright Convention" and
"A Declaration of an Agreement relative to the WIPO Presentation and
Record Convention" as to the interpretation of these WIPO conventions. In
both of these declarations it is agreed that storage of protected works in
digital form in electronic media is "reproduction" under the Berne
Convention.
(ii) As seen above,
it is indeed the respective recipients that own the tuner in which the instant
respective sound sources transmitted to the public in the instant programs are
reproduced,
but defendants are under
contract with those recipients to give a broadcasting service and transmit
programs for a fee as exclusive right of reception, and lend them a
"perfect card" which is indispensable to receive encoded signals and
decode them. Thus they have under control the recipients' reproduction as a
commercial business.
Therefore, it is defendants that are indeed principal
actors in the reproduction in the tuner.
(iii) Such being the
case, defendants, who transmit the music data in the instant respective sound
sources to the public in the instant programs and allow the respective
recipients to store them in RAM in their receiving tuners, infringe the reproduction right
plaintiffs have as record producers in the instant respective records.
(2) Defendants'
argument
The Copyright Law does not admit of interpreting
the momentary storage of signals in the receiving tuner as
"reproduction" as explained below:
(i) In the interpretation of our Copyright Law it has generally been held
down to this day that the temporary storage of programs in RAM is not
"reproduction." The
reason is that such temporary storage (loading) inevitably accompanies any use of a program on a computer, and that if
such an act were regarded as "reproduction" and copyright owners were
to acquire an exclusive right to it, they would practically be given a
"right to use" of a work when nowhere in the Copyright Law is such
right recognized.
The 1988 amendment to the Copyright Law
introduced a new concept of a program work by inserting 113 (2) (use of an
illegal program conclusively presumed an infringement). Now this provision is a
clear indication of the legislative intent not to regard temporary storage of a
program work in RAM as reproduction. For if the legislature had regarded the
loading of a program work as reproduction, such a provision of constructive
infringement would have been needless, since use of a program never happens
without reproduction. Therefore, the current Copyright Law seems to come from a
legislative intent to avoid causing a "right to use" of software to
be virtually created by treating as reproduction the temporary storage of a
program work inevitably involved by use of a program work.
This remark applies as well to electronic data
short of a program work. For where
use of a work turned into the form of data on a computer inevitably involves
temporary storage in RAM, treatment of such temporary storage as reproduction
would virtually result in creation of a "right to use" of the work in
the form of electronic data, just as is the case with the program work
discussed above.
(ii) Even in the light of the Berne Convention and the WIPO copyright
convention, we cannot say that the interpretation of temporary storage in RAM
as "reproduction" is obligatory in interpreting our Copyright Law.
In the Berne Convention or the WIPO copyright
convention that are binding on Japan as international contracts, there is
nothing that makes it Japan's duty
to interpret "temporary storage" as "reproduction."
(iii) As stated above, since temporary storage in RAM should be interpreted to
be non-"reproduction" under the Copyright Law, plaintiffs' argument
is evidently untenable. Furthermore, storage in the receiving tuner in this
case is no more than technical and ephemeral storage accompanying reception and
reproduction of musical signals. It is even short of temporary storage
discussed so far, and is so much the less "reproduction."
The following is the findings of defendant Japan
Digital's survey research with Sony's receiving tuner (DST --
D900): It was ascertained that broadcasting electric waves
stayed in the tuner for only about 0.69 second between reception by the antenna
and output upon decoding. Such momentary and technical storage happens also
when a music CD is played on a CD player or when a work is transmitted by fax.
Opinion in favor of subjecting such short-lived storage to the right of
reproduction is as little known in foreign countries as in Japan
(4) Supposing arguendo that
momentary and technical storage in RAM accompanying every use of electronic
equipment were illegalized as an infringement of the reproduction right as
plaintiffs contend, modern society
flooded with electronic equipment would ruinously suffer, for every use of
other people's works with the help of such equipment would become impossible.
If, as plaintiffs claim, all RAM storage were
illegal reproduction, not only playing music CD on a CD player or transmitting
a work by fax, but receiving a broadcast in a TV equipped with RAM for
processing sounds and images would all become illegal, and would defeat the
very purpose of the Copyright Law, 1:
"to have regard to a just and fair exploitation of the cultural
products, and thereby to contribute to the development of culture."
(3) Defendant
Japan Digital's separate argument
Defendant Japan Digital does not have under control
the recipients' storage in their tuners as plaintiffs contend.
Plaintiffs denounce storage of signals in the
receiving tuners as defendant Japan Digital's own act by asserting that the
defendant has a broadcasting contract with recipients and lend them the
"perfect card" needed for reception, which is in fact a means of
controlling their reproduction in their receiving tuners. Indeed the defendant has the
proprietary right to the card, but it does not stand in any legal relations
with any recipient as lender of the card or in any other contractual relations.
The lender of the card is the program-supplying broadcaster with whom a
recipient first comes in touch, or defendant Daiichi Kosho in this case. A
prospective recipient will enter into a contract for broadcasting for a fee
with it, not defendant Japan Digital.
Thus defendant Japan Digital does not have recipients
under control, whether in fact or in law. In this point, too, plaintiffs'
argument is unfounded.
(4) Defendant
Daiichi Kosho's separate argument
Admitting for argument's sake that storage in RAM in
the receiving tuner is "reproduction," if there is no broadcasting
that does not expect reception, and if such broadcasting is licensed by authors
or others, there is as a matter of course implied license to store it in RAM in
the receiving tuner. This is also true of satellite digital broadcasting.
On the other hand, plaintiffs are record producers who
have no vested right to license broadcasting. The transmission of the instant
programs to the pubic is of course legal. They have no say about it. If in this
factual context they were allowed to exercise the right to license reproduction
with regard to reception at the other end of transmission, the result would be
that record producers who have no right to license broadcasting would as good
as have that very right to license broadcasting, obviously an inconsistent
consequence.
It would then be proper to hold that though
plaintiffs, devoid of power to license broadcasting, have not licensed it, they
have given implied license to reception as a matter of course by charging a fee
for use in broadcasting. Consequently there is no infringement of the
reproduction right in the tuner.
(5) Plaintiffs'
counterargument against defendants' argument in (2) (i) above
As regards the Copyright Law, 113 (2), even supposing
that storage in RAM inherently constitutes "reproduction," it is
possible to conclude as a matter of interpretation that the Law intended to
confine illegal use of programs and illegal storage of programs in RAM to
prescribed cases for the purpose of protecting program users. That provision,
therefore, is not a clear indication of the legislative intent to regard
storage in RAM as non-"reproduction."
5
On issue 5
(1) Plaintiffs' argument
Through their transmission to the
public in the instant programs defendants impaired the reproduction right
plaintiffs have as record producers (see 3 and 4
above as to defendant Japan Digital and 2-4 above as to defendant Daiichi Kosho), thereby allowing a large number of recipients to record the instant
respective sound sources on MDs, with the result that each plaintiff missed a
business opportunity for at least 30,000 single CDs of each of the instant
respective records (less than one half of 65,000 the number of
subscribers to the instant programs).
Since each plaintiff's profit that could
have been earned amounted to \ 15 million (profit
from a single CD \500 x 30,000), this amount is each plaintiff's loss caused by
defendants' above-mentioned impairment of its right of reproduction.
(2) Defendants' argument
Defendants dispute plaintiffs' argument.
In considering issues 1 to 5 we first take up issues 2 to 4, because we
need not consider issue l depending on our judgment of issues 3 and 4.
I
Issue 2 (Is the
reproduction right infringed in the storing server?)
1 There is no denying that defendant Daiichi Kosho's act of
storing the instant respective sound sources in the storing server in
transmitting them to the public in the instant programs is reproduction of the
instant respective records.
2 Is the
Copyright Law, 44 (1) applicable mutatis mutandis by virtue of 102 (1)?
(1) Is the transmission of the instant programs is "broadcasting"
within the meaning of the Broadcast Law?
(i) The Copyright Law, 2 (1) vii/2 defines "public transmission"
as "transmission of radio communication or wire-telecommunication intended
for direct reception by the public, excluding the transmission (other than that of program works) by
wire-telecommunication installations one part of which is located on the same
premises where the other part is located or, if the premises are occupied by
two or more persons, both parts of which are located within the area therein
occupied by one person." Then
it proceeds to define "broadcasting" in 2 (1) viii as "public transmission of radio communication intended for
simultaneous reception by the public of the transmission having the same
contents." Since the transmission of the instant programs in the
respective channels, in the light of its mode ((see Pt 2
I 3 above), is evidently transmission of radio communication
intended for direct and simultaneous reception by the public of the
transmission having the same contents, so that it is "broadcasting"
as defined in the Copyright Law, 2 (1) viii, and so it is of course
"broadcasting" as used in 44 (1).
Plaintiffs point to the fact that the
instant programs are divided among many channels according to genres of music
and a set of pieces of music is repeatedly transmitted in each channel (see Pt 2 IV 2 (2)(i) (c) above), and state that because recipients are allowed to receive music of the
genre to his taste at the time that suits his convenience, they practically get
nothing less than the request transmission (separate
transmission to recipients upon separate requests) and
therefore what is not "transmission that can be received by the public
with the same contents and at the same time." But plaintiffs are merely
describing the actual state of the instant programs in which it allows
recipients to receive and listen to the music they like during the time zone
they choose, consequentially offering them nearly as much convenience as the
request transmission. This does
not affect the mode of transmission and reception of the instant programs in which the transmission in each
channel has the same contents and is simultaneously received by the public.
Thus plaintiffs' argument is untenable.
(ii) Plaintiffs' argument in Pt 2 IV 2 (2) (i) (a) & (b) above
Plaintiffs' argument may be summarized as
follows: The limitations placed upon record producers' reproduction right in
relation to broadcasting as prescribed by the Copyright Law in 102 (1) & 44 (1) are the outcome of value judgment from the point of view of rational
coordination of interests between broadcasters and record producers. The
judgment was made on the basis of the "broadcasting" then carried on
by NHK and commercial TV and radio stations and in the light of the
circumstances that weighed in favor of those limitations, such as (a) it was strongly characterized by public interest and
simultaneous transmission, (b) it used records only as apart of compiled programs, (c) it was analog broadcasting in which sounds were not good
enough to discourage the purchase of records, and (d) it evoked demand for records and encourage the purchase of consumers as a
side effect. Any communication or
even radio communication outside the context of interests that afforded a basis
for such value judgment does not apply cannot amount to
"broadcasting" in which record producers' reproduction right is
subject to those limitations. Now the transmission of the instant programs is
outside that context of interests in view of its actual state (see Pt 2 IV 2 (2) (i) (a) & (b)(aa)--(dd)), so that it is
not "broadcasting" within the meaning of the Copyright Law.
Now we will examine the soundness of plaintiffs'
argument. The Copyright Law at the time of its enactment in 1970 defined
"broadcasting" as "transmission of radio communication intended
for direct reception by the public" (The
Copyright Law before the amendment by Law No. 86 of 1997. 2 (1) viii). The
provisions limiting the record producers' reproduction right (102 (1), &
44 (1)) were laid down in relation to the "broadcasting" as defined
above. And afterwards at the 1997 amendment in which the creation of the right
of making transmittable relating to interactive transmission led to review and
reconciliation of "interactive transmission,"
"broadcasting." "wire broadcasting," and "public
transmission," and, as a higher concept over these three, the definition
of "broadcasting" as quoted in (i) above remained unchanged, and in relation to this
"broadcasting" those provisions limiting record producers'
reproduction right were preserved. From this legislative history of the
definition of "broadcasting," we should conclude in the final
analysis that the Copyright Law confines the test of "broadcasting"
to that mode of transmission and reception of communication expressly
designated in the definition clause, even admitting, for argument's sake, that
the context of interests between broadcasters and record producers were in fact
taken into consideration at that time as plaintiffs maintain. Therefore, it is
not proper to hold it determinative of the meaning of "broadcasting"
under the Copyright Law whether the circumstances plaintiffs count up in (a)--(d) are present or not. Since it is unambiguously clear from the legislative
history of the definition clause that the only test of "broadcasting"
under the Copyright Law is the mode of transmission and reception of
communication as described in the clause, we have to say that what falls within
its express words is "broadcasting." Now as the transmission of the
instant programs comes within the definition as stated in (i) above, it certainly is "broadcasting" within
the meaning of the Copyright Law, despite the actual state plaintiffs describe
in Pt 2 IV 2 (2)(i) (a) & (b) (aa) -- (dd) above. Thus
plaintiffs' argument is untenable.
Incidentally, plaintiffs also argue that, in view of
its actual state (see Pt 2 Iv 2 (2)(i)(a) & (b)(aa)-- (bb)), the transmission of the instant programs is
substantially identical with, and indistinguishable from, a type of interactive
transmission called Internet broadcasting of the push type in which record
producers enjoy the right of making transmittable. In relation to records
producers, therefore, it should not be distinguished from it as
"broadcasting" in which free transmission and temporary fixation are
allowed. However, the Copyright Law clearly distinguishes "interactive
transmission" (2 (1) ix/4) from "broadcasting" in
the definition clause, and, as held above, it is unambiguously clear that the
transmission of the instant programs falls within the definition of
"broadcasting," while "interactive transmission" does not.
As stated above, plaintiffs' reliance solely on its substantial similarity with
interactive transmission in denying the distinction cannot be supported.
Plaintiffs' argument is untenable here, too.
(2) Is defendant Daiichi Kosho a "broadcaster" under the Copyright
Law?
Defendant Daiichi Kosho is independently engaged
in the transmission of the instant programs which is "broadcasting"
under the Copyright Law as stated in (i) above, as broadcast programming operations in delegated broadcasting in
the capacity of a program-supplying broadcaster under the Broadcast Law, 2
iii/5, 52/13 (1) as stated in Pt 2 I 3 above, so that the defendant is an
entity "engaged in the broadcasting business" (Copyright Law, 2 (1) ix) and so a
broadcaster" as used in 44 (1), too.
Plaintiffs argue that "broadcasters"
as used in the Copyright Law include "facility-supplying broadcasters
only, to the exclusion of "program-supplying broadcasters" like
defendant Daiichi Kosho. Their reason is that the Broadcast Law dichotomy
between "facility-supplying broadcaster" (a
broadcaster that actually transmits radio communication) and "program-supplying
broadcaster" (an entity that delegates a facility-supplying
broadcaster to transmit broadcast programs) dates
from the 1989 amendment to the Law, and there were no such concepts in 1970
when the Copyright Law was enacted, the only existing broadcasters were
transmitters of radio communication, i.e., "facility-supplying
broadcasters" that actually transmit radio communication, not
"program-supplying broadcasters" like defendant Daiichi Kosho But if a concept is defined in
the definition clause of any law, it should of course be interpreted to apply
to an entity that comes within its scope even if not originally contemplate in
the concrete. Applicability to it should not be denied simply because it did
not exist and was not then contemplated in the concrete, Defendant Daiichi Kosho that itself
performs an important part of the process of transmitting the instant programs
by, for instance, collecting data or compiling programs as described in Pt 2 I
3 above may be called a principal actor in the transmission of the instant
programs (incidentally, since plaintiffs are seeking to have
defendant Daiichi Kosho as such actor enjoined from the public transmission of
the instant programs, there is no dispute between the parties about the very
fact that defendant Daiichi Kosho is a principal actor in the transmission). It may be called none the
less an "entity engaged in the broadcasting business" for the fact
that it is not itself transmitting radio communication. Thus plaintiffs' argument is groundless.
(3) Is storage of
music data in the storing server "temporary sound recording for
broadcasting"?
(i) As to the question about the test of "temporary sound
recording" or "for broadcasting," in the Copyright Law, 44 (1)
made applicable mutatis mutandis by virtue of 102 (1), we start with the
multiple meaning of "temporary" in particular. As the term is not
unambiguous in itself, it should be interpreted in the light of the policy
behind any particular provision.
The policy for allowing broadcasters to make temporary recording of
records as an activity that does no harm to record producers' reproduction
right appears to have been adopted under the notion that records are by nature
such as to lend themselves to freer use without the authorization of record
producers (use of commercial records in broadcasting, however, gives
rise to liability to pay fees for secondary use to record producers). On the other hand, broadcasting itself can be freely done, and it is
generally done by means of sound or visual recordings. Then free recording of
records to the extent that it is ordinarily necessary for concrete broadcasting
should also be allowed. In determining the applicability of "temporary
recording for broadcasting" of records in the cited provision, therefore,
it should be considered whether the recording involved, in the light of its
actual state, is within the ordinary limits of necessity for concrete
broadcasting.
(ii) From B18 and the gist of the whole argument we understand the way
defendant Daiichi Kosho stores music data in the instant programs in the
storing server as follows:
(a) The selection for broadcasting in the instant programs is determined one
to one and a half months in advance of the scheduled week (sometimes immediately before in the case of newly released records). The records thus concretely
selected are stored by Friday preceding the scheduled week unless already
stored in the storing server.
(b) The server has a capacity of 1 terabyte which is capable of storing about
10,000 pieces of music at the rate of 5 minutes a piece, but in practice 40,000
pieces at most, and never up to capacity.
(c) A computer linked to the server has an installed program for retrieving
and delete in a lamp pieces to be deleted, so that all a user has to do is to
input a certain date when he wants to retrieve and delete in a lump all the
pieces last broadcasted before that date.
(d) The weekly change of broadcast programs makes it necessary to store new
music data and to delete stored music data to make room for them in the
capacity mentioned in (b) above. All the stored music data, except those being broadcasted and
scheduled for concrete broadcasting, will be deleted in sequence of the dates
of last broadcasting on the system mentioned in (c) above.
(e) Since late August l998 the server has been checked every three weeks at
least to retrieve on the said system all the pieces of music last broadcasted
more than three months ago and to delete them all in a lump on the system
mentioned in (c) above.
(iii) (a) The above
description of the operation system in practice shows that the storage in the
server of the music data in the instant programs is not made until the
broadcasting becomes concrete and specific, and that the total number of pieces
of music stored in the server is limited, those not broadcasted being
ultimately deleted. Therefore, the
storage is made for concrete broadcasting within the limits of necessity.
It may happen even under this system that
music data for repeated broadcasting are not deleted after a particular
broadcasting is finished, and are preserved for the next broadcasting. But this
is a mere consequence of repeated broadcasting, and is none the less within the
limits of necessity for concrete broadcasting. Merely because it has this
result, the operation system cannot be condemned as one ab initio intended for
permanent and continuous storage of music data (incidentally,
the storage that is consequentially continued as above stated, becomes ex post
facto illegal by the Copyright Law, 44 (3), if it is preserved beyond six
months after recording or last broadcasting. But plaintiffs are concerned with
the recording of the instant respective sound sources, and do not claim the
applicability of this provision. Thus it is not an issue in the instant case).
Therefore, the storage of the music data
in the instant programs in the storing server, in view of its actual way of
operation, is "temporary" in the sense that it is storage in a system
that contemplates its eventual deletion, and seeing that it is within the
ordinary limits of necessity for concrete broadcasting, it is "temporary sound recording
for concrete broadcasting" under the Copyright Law, 44 (1) made
applicable mutatis mutandis by virtue of 102 (1).
(b) Plaintiffs contend that the storage of music data in the instant programs
in the storing server cannot be "temporary sound recording for
broadcasting," since it is ab initio intended for
wide use in several
different channels.
Evidently, however, the storage of music
data in the instant programs in the storing server is for use in scheduled
concrete broadcasting, not in general broadcasting.
The storage, as stated above, is made on
the system of operation in which it will eventually be deleted in the absence
of necessity for concrete broadcasting, so that it is not ab initio intended
for wide use. Although admittedly in the instant programs some music data
continue in the storage because of repeated broadcasting in several channels,
such a state of things is a result of a subsequent broadcasting schedule, and
not a thing determined at the time of storage. As to some music data such a
result may be foreseen, but this does not justify a sweeping statement that the
storage of music data in the storing server is ab initio intended for wide use.
Furthermore, it would be a hasty conclusion to
say that where use in several broadcasts is intended from the first, there is
no temporary sound recording. We should rather see the way the Copyright Law
provides as to how long "temporary sound or visual recording"(44 (1)) can continuously preserved before it becomes illegal. It provides
that such recording is used again in broadcasting within six months, it can be
preserved for six months, and lawfully, too(44 (3)). This provision even
contemplates including temporary recording intended for reuse in "temporary
sound or visual recording for broadcasting." Additionally, granting, for argument's sake, that
recording intended for use in several broadcasts is not "temporary
recording for broadcasting," a broadcaster who has music programs for
repeated broadcasting as in the instant case would have to avoid illegal
reproduction by deleting a recording each time and making it anew for the next
broadcasting, this situation will only impose a heavy burden of desk work on
the broadcaster without bringing any particular benefit to record producers, a
thing unreasonable socially and economically. Hence there is no reason to deny that the storage of music
data in the instant programs, even if intended for more than one use in broadcasting,
is "temporary sound recording for broadcasting" (plaintiffs argue in denial on the basis of the specific fact that such
repetition is made in different channels, not in the same one. However, where
one broadcaster sets up many channels according to genres of music and operates
them as one system, we see no reason why we should distinguish repeated use in
one channel and repeated use in different channels).
Therefore, plaintiffs' argument is
groundless.
(4) Now taken altogether, defendant Daiichi Kosho's act of storing music data
of the instant sound sources in the instant programs is a broadcaster's act of temporary sound recording of the instant respective records
by means of its own facilities for its own broadcasting (Pt 2 I 3 (3)(iii) above). Under the Copyright Law, 44 (1) is applicable mutatis
mutandis by virtue of 102 (1), its act does not infringe the reproduction
right plaintiffs have as record producers as to their instant respective
records.
II Issue 3 (Is aiding or abetting private reproduction an
infringement of the
reproduction right?)
1 From the gist
of the whole argument it can be inferred that there are a good number of
recipients of the transmission of the instant respective sound sources in the
instant programs who record them on digital MDs by means of sound recording
machines connected to the receiving tuner, there is no doubt that such sound
recording is those recipients' "reproduction" of the instant
respective records.
2 Is the Copyright
Law, 30 (1) applicable mutatis mutandis by virtue of 102 (1)?
(1) It is evident
that recipients' recording of the instant respective sound sources on MDs is
generally only for personal use, family use or similar use within a limited
circle (about which fact itself there is no substantial dispute
between the parties), and it is also evident that the recording
is not done by means of automatic reproducing machines for public use.
Therefore, individual recipients' sound recording falls within the purview of
the Copyright Law, 30 (1) made applicable mutatis mutandis by virtue of 102
(1) as "reproduction for private use (imaginably some recipients may
record the instant respective sound sources on MDs for use beyond those bounds.
But there are no signs of defendants' actually aiding or abetting such act,
which, therefore, will be left out of consideration in the instant case).
(2) Tenability of
plaintiffs' argument in Pt 2 IV 3 (1)(i)
Plaintiffs begin with the presupposition that
since the Copyright Law, 30 (1) is based on the main clause of 9 (2) of the
Berne Convention, "reproduction for private use" within the meaning
of the Japanese provision is subject to the proviso added to the cited
conventional provision: "provided that such reproduction does not conflict
with a normal exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author."
And they proceed to argue that in view of the actual state of the public
transmission of the instant programs as described by them in Pt 2 IV 3 (1)(i)(a)(b)(c) above,
recipients' recording the instant respective sound sources on MDs does not
qualify as "reproduction for private use" within the meaning of the
cited Japanese provision, because it prevents a normal exploitation of records
by record producers. Now we go into the question whether this argument is
tenable.
We begin by taking up the relation between
the Berne Convention, 9 (2) and the Copyright Law, 30 (1). This Japanese provision, on the basis
of the conventional provision that makes it a matter for legislation of the
respective countries of the Union to restrict authors' reproduction right in
special cases, may be characterized as prescribing a mode of permissible
restriction. In its relation with this conventional provision, therefore, 30
(1) must meet the requirement set by the proviso appended to the main clause of
9 (2). But this conventional provision does not expressly indicate in concrete
terms what types of restriction meet the requirement. In the final analysis,
therefore, we must conclude that it delegates the legislatures of the
respective countries to do it at their own discretion. The statutory 30 (1)
should then be characterized as implementing the conventional 9 (2) by
supplying concrete form to the requirement of its proviso, so that the
statutory provision may be said to provide for the mode of reproduction as
stated in (1) above, as meeting the requirement for restriction on the
reproduction right. Therefore, in order to determine whether a certain
reproduction is for private use permissible under the Copyright Law, we have
only to consider whether it is in conformity to 30 (1). We need not go directly to the
conventional provision behind it. Thus plaintiffs err in arguing from the wrong
premise.
As we have seen so far, the respective
recipients' recording of the instant programs on MDs generally has the purpose
and mode as stated in (1) above, and is in conformity to 30 (1), This observation of their purpose
and mode of sound recording remains unaffected by plaintiffs' description of
the actual state of the public transmission of the instant programs in Pt 2 IV
3 (1)(i) (b) & (c).
"Conflict with a normal exploitation of records by record
producers" does indeed arises only in interactive transmission of the
instant programs in its actual state as plaintiffs describe in Pt 2 IV 3 (1)(i)(b) & (c). Responsibility for interactive transmission
in the actual state should not be placed on mere recipients who merely receive
the instant programs. As to the respective recipients' sound recording that
falls properly within the purview of
"private use" under the Copyright Law, 30 (1), plaintiffs
maintain on the basis of interactive transmission in its actual state that it
is not "reproduction for private use" within the meaning of the cited
statutory provision and therefore illegal. In the last analysis, this amount to
charging the respective recipients with responsibility for another's conduct
that is outside the scope of their responsibility. Their argument is untenable
in substance.
Therefore, plaintiffs' argument is untenable.
(3) As the foregoing
shows, the respective recipients, who have received music data in the instant
respective sound sources transmitted in the instant programs and recorded such
music data on MDs by means of audio equipment connected to the receiving tuner,
cannot be held liable for an infringement of the reproduction right record
producers have in the instant respective records, since such an act is
generally "reproduction for private use" permissible under the
Copyright Law, 30 (1) made applicable mutatis mutandis by virtue of 102 (1).
3 Plaintiffs, on
the premise that the respective recipients' recording the instant respective
sound sources on MDs is illegal reproduction of the instant respective records,
argue that defendants' public transmission of the instant respective sound
sources in the instant programs is illegal as aiding or abetting the respective
recipients in their illegal reproduction. As stated in 2 above, however, the
respective recipients' recording the respective sound sources on MDs does not
constitute illegal reproduction of the instant respective records. Plaintiffs'
argument is thus unfounded in its
premise.
Accordingly, we do not have to consider the
other points before we can declare groundless plaintiffs' argument in favor of
an infringement of their reproduction right by reason of aiding or abetting of
illegal private reproduction.
III Issue 4 (Is the reproduction right infringed in the receiving tuner?)
1 Is storage of
data in RAM "reproduction" within the meaning of the Copyright Law?
(1)
"Reproduction" under the Copyright Law means "reproduction in a
tangible form by means of printing, photography, polygraphy, sound or visual
recording or otherwise" (2 (1) xv), so
that there is no doubt that it includes electronically recording programs or
data on magnetic disks or CD-ROM in such a way that they are capable of being
reproduced by means of a computer output device.
Now RAM (random access
memory) is an integrated circuit for preservation of operation
data in a computer generally known as "memory." In ordinary data
processing on a computer, data in a file on a hard disk are transferred to RAM,
at the time of operation such data in RAM are processed by the central
processing unit (CPU), and when the
operation is finished and the file is closed, the data in RAM are transferred
back to the hard disk. Storage of data in RAM is generally thus limited, and
can be preserved only while electricity is on in the computer, and is gone as
soon as it is off. In this sense storage of data in RAM is temporary and
transient, so that it is to be distinguished from storage on magnetic disks or
CD-ROM that can be retained without electricity.
We will proceed to examine whether storage of data in
RAM is "reproduction" within the meaning of the Copyright Law, taking
into consideration its characteristics stated above.
(2) The Copyright Law, with regard to exploitation of a work in an intangible
form, vests the author with an exclusive right to exploit it only if such an
act is done publicly ("for the
purpose of making a work seen or heard directly by the public")(22-26/2), whereas, with regard to reproduction (duplication) in a
tangible form, it vests the author with an exclusive right to do the act,
whether it is done publicly or not (21).
Thus as a rule under the Copyright Law, reproduction in a tangible form,
even if it is the making of only a single copy not intended for public use,
constitutes ass a rule an infringement of the author's exclusive right, whose
range is so wide that reproduction in a tangible form stands in a sharp
contrast with reproduction in an intangible form. How can this be accounted
for? Seeing that the making of a
reproduction of a work in a tangible form is fraught with the possibility of
its being used repeatedly in the future, we believe that it was considered a
proper preventive measure to extend the author's right to the very making of a
reproduction that has such a possibility, whether it is done publicly or not.
From the above legislative intent of the
Copyright Law as to the reproduction right, we may say that no
"reproduction" or "reproduction (duplication) in a tangible form" is formed under the Copyright Law unless it has
the possibility of being used repeatedly in the future. Storage of data in RAM, however, is of
a temporary and transient character as stated in (1) above, and so is not a reproduction in such a form that it has the
possibility of being used repeatedly in the future. Therefore, we may conclude
that storage of data in RAM is not a "reproduction" within the
meaning of the Copyright Law.
(3) The above conclusion can be supported by the provision relating to the
author's right to the program in the Copyright Law (2 (1)
x/2) as discussed below:
For the use of a program on a computer it is
essential that it be first stored (loaded) in RAM in the computer. Though use and storage of a program in RAM are
thus inseparably united, the Copyright Law, with regard to a program work, has
no provision for the author's exclusive right to use it. Moreover, 113 (2)
provides that an act of using on the computer in the conduct of business any
reproductions made by an act infringing the copyright to a program work shall
be deemed to constitute an infringement of the copyright to it, if the user was
aware of the fact when he acquired the authority to use those reproductions.
Since the provision confines infringements to specific acts of using programs
that have certain prescribed elements, it naturally presupposes that use of a
program in general does not constitute an infringement. Then it follows that
use of a program and storage of data in RAM inseparably united with it are not
illegal with the exception prescribed in 113 (2) quoted above. We may properly account for it by
pointing to the temporary and transient nature of storage of data in RAM as
stated above.
Plaintiffs, on the premise that storage of
data in RAM is inherently "reproduction," argue as to 113 (2) that
the provision should be construed as intended to protect users of programs by
limiting cases of infringement to use of a program and storage of data in RAM
involved. But this construction is in conflict with accepted legal drafting
practice in which the term "deem" is used to place a heterogeneous
thing in some class, so that the provision is evidently one that deems an
inherently non-infringing act as an infringing one in certain circumstances,
not one limiting cases of infringement as plaintiffs assert. Accordingly, plaintiffs argument is
untenable.
(4) Plaintiffs also argue as to the statutory definition of
"reproduction" that the Copyright Law defines the term merely as "reproduction in a
tangible form" and is silent on its duration, so that we cannot deny that
storage of data in RAM is a reproduction, just because it is gone as soon as
electricity is turned off. It is not always easy to draw a precise line between
"reproduction in a tangible form" and "reproduction in an
intangible form," and in view of the circumstances stated in (2) and (3) above, we believe that storage in RAM is short of reproduction within the
meaning of the Copyright Law because of its temporary and transient nature as
described above. Lack of any express reference to the duration of
perceptibility of a work in the statutory definition does not automatically
foreclose the conclusion that storage in RAM is not "reproduction."
We cannot agree with plaintiffs.
@@Plaintiffs also argue that since it reads in the Berne
Convention as to the reproduction right, "in any manner or form" (UCC, "by any means"), the
expression "reproduction" in the Copyright Law, if interpreted as
consistent with these terms, storage in RAM must be construed to mean
"reproduction." But these provisions as to the reproduction right (the Berne Convention, 8 (1) and the UCC, 4 (2)) are not intended to
define the term "reproduction" for its own sake, but simply provides
as to a given concept "reproduction," that the author of a work shall
have the exclusive right of authorizing it in any manner or form. On the other hand, seeing that neither
Convention defines "reproduction" anywhere in it, in the final
analysis both of them leave it open whether storage in RAM is to be construed
as reproduction or not under our Copyright Law. The recommendation or agreements at international meetings
to which plaintiffs refer (Pt 2 IV 4 (i)(c) & (d)) are not binding on us in our interpretation on this
point, either. Here again we
cannot support plaintiffs' argument.
2 On storage in RAM in the receiving tuner
How the music data in the instant programs are
stored in the receiving tuner is described in Pt 2 I 4 above. Because such
storage in RAM is evidently of a temporary and transient nature just like
ordinary storage of data in RAM in a computer, storage in RAM in the receiving
tuner of the instant respective sound sources received in the instant programs
is not "reproduction" within the meaning of the Copyright Law, and so
it does not infringe the reproduction right plaintiffs have in the instant
respective records as record producers.
IV To add a few
words in view of the special character of the instant case, it seems that in
their argument about "broadcasting" (the
Copyright Law, 44 (1)) and argument about "reproduction for private
use"(30 (1)), plaintiffs stress the need of a realistic
construction of the Law, because a literal application of the provisions of the
Copyright Law to an unforeseeably new thing such as the public transmission of
the instant programs in its actual state will unreasonably prejudice the
interests of plaintiffs (record producers) and unjustly enrich defendants
operating the instant programs at the former's sacrifice, thereby bringing
about an inequitable distribution of profits, a result that should be
forestalled.
It is the opinion of this court, however,
that a proper interpretation of the Copyright Law
leads to the conclusion as stated
above. On the assumption that the actual state of the public transmission of
the instant programs is as described by plaintiffs, we can imagine that there
is indeed a substantial imbalance in the distribution of profits between
plaintiffs and defendant Daiichi Kosho. Plaintiffs' argument that this should
be reflected in the interpretation of the Copyright Law deviates from statutory
interpretation into legislative advocacy. We would say that such an argument
about a substantial maldistribution of profits should be advanced as a
legislative proposal or presented to the other party in negotiations, or to the
Commissioner of the Agency for Cultural Affairs for his decision, about fees
for secondary use under the Copyright Law, 97.
As stated above, plaintiffs' contentions that
defendants infringe plaintiffs' copyright neighboring right (the reproduction right they have as record producers) are all untenable, so that plaintiffs' claims for relief are unfounded,
without need to examine issue l or any other point.
Accordingly, this court decides as
in the Formal Judgment.
Tokyo District Court
Civil Division 46
Presiding Judge
Judge Ryoichi MIMURA
Judge
Tetsuro NAKAYOSHI
Judge Katsushige ONISHI cannot sign and
seal this judgment because of his transfer to another court.
Presiding Judge
Judge Ryoichi MIMURA
* * *
LIST OF SOUND SOURCES
1 Record producer:
Victor Entertainment K. K.
Title of the piece: Beyond the Night Sky
Performer: SMAP
Date of production: November 1997 CD product No.: VIDL -30188
2 Record producer:
King Record K. K.
Title of the piece: Raging Waves
Performer: Megumi HAYASHIBARA
Date of production: April 1998
CD product No.:
KIDA-163
3 Record producer:
Toshiba E. M. I. K. K.
Title of the piece: GET ON THE FLOOR
Performer: ICE
Date of production: May 1998
CD product No.:
TOCT-4105
4 Record producer: Japan Crown K. K.
Title of the piece: Naniwa Fireworks
Performer: Mika TACHIKI
Date of production: March 1998
CD product No.: CRDN-547
5 Record producer: K. K. Warner Music, Japan
Title of the piece: Summer Sunset
Performer: Ryoko HIROSUE
Date of production: April 1998
CD product No.:
WPDV-7140
6 Record producer:
K. K. Fun House
Title of the piece: Magic of Summer
Performer: Pepperland Orange
Date of production: February 1998
CD product No.:
FHDF-1687
7 Record producer: K. K. B. M. G., Japan
Title of the piece: Heart
Performer;
Masaji FUKUYAMA
Date of production: December 1997
CD product No.: BVCR-8819
8 Record producer: Universal Victor K. K.
Title of the piece: Pitfall
Performer:
Boy Knife
Date of production: December l997
CD product No.: MVCH-29020
9 Record producer:
Avex K. K.
Title of the piece; FOREVER YOURS
Performer:
Every Little Thing
Date of production: May 1998
CD product No.: xcdAVDD-20244
*Attorney at law,
Professor Emeritus, Kobe University