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

 

 

FORMAL  JUDGMENT

 

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.

 

 

FACTS AND REASONS

 

Pt 1  Claims for relief

 

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.

 

Pt 2  Outlines of the case

 

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.@ 

 

 2  Plaintiff's rights

    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).

 

 II  Plaintiffs' claims for relief and grounds for the claims

 

  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, ˜‚P‚P‚Q (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?

 

 IV   Parties' arguments on the issues

 

 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, ˜ 1jAthe 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.

 

Pt 3  Judgment of this court

   

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.

 

 V  Conclusion

 

       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