(2) A Play Station consists of a main body and a controller connected with it. At the time of its use, the main body, which houses a CD-ROM storing a game soft, is connected with a TV receiver by means of an AV cable. The player manipulates buttons and others on the controller, then image data and sound data begin to be outputted out of the program stored in the CD-ROM, and images appear on the screen (CRT display) of the TV receiver, synchronized with sounds that stream from the speaker. Thus the contents of images and sounds are determined by the way he manipulates the controller. As a result one and the same game soft will produce different concrete contents of images on the screen and sounds from the speaker each time, according as  the player actually manipulates the controller.

(3)The instant game soft l comes under the category of so-called role playing games.

The story of the game is developed as the hero, according as the player manipulates, travels through different imaginary localities, encounters and fights with enemies in different places, or makes friends with people he meets on the way.

 The instant game soft 2 is a TV game of a contest type in which the player by manipulating the controller to the rhythm of music makes characters dance and compete with each other in the grace of movement.
 

 Thus film works are protected by the rights of presentation and distribution, rights peculiar to them, in addition to the rights of reproduction(Article21),  public transmission(Article22), translation and adaptation(Article27), and original author's exploitation of a derivative work(Article28). The right of presentation is the right to utilize a film work by presenting it to the public. It corresponds to the right of performance as the right of utilitization of formless works.

(ii)  The right of distribution is recognized for film works only as the right to transfer�@or lend copies of such works. Such act includes not only transfer or lending to the public, but also transfer or lending for the purpose of presentation (projection) to the public (Article21 (1) -19).

 The reason why the Copyright Act provided for the right of distribution as stated above for film works only is that it was in observance of a duty under the Berne Convention because its Brussels amendments provided for the right of distribution of film works. But the fact of the matter is that it was in fact because of special circumstances attending film works as stated below (A 6, 9-14, 21, 47, B 24 etc.)

     Movie house films are utilized by projecting printed films (copies of the original film) in movie houses so that a large audience may enjoy the audiovisual expressions of those films at one time. Each individual copy has a great economic value in the sense that its projection can  fetch vast profits (box-office receipts), and, unlike other works, copies of which are sold directly to the consuming public in large quantities, a small number of copies of movie house films are traded in solely between film production-distribution companies and movie house proprietors.  As a matter of fact, film production needs an investment of vast funds, so that film producers-distributors have to recover the investment by stragetically determining the area and period for show and rotation of films in anticipation of box-office profits, availing themselves of the so-called distribution system(as described below) as a means of controlling the distribution of printed films. They do not go beyond lending their printed films to the film exhibitors and, as soon as the show period ends, have the latter return them to themselves or pass them to the next exhibitors, and this mode of distribution has become an established practice in the trade. The fact that the Copyright Act has in view nothing but film works in its provision for the right of distribution may be attributed to the legislative policy consideration that in view of the film producers' mode of utilization of movie house films, and the economic value of a single copy, the peculiar mode of distribution of copies, it is proper to protect their interest in recovering their investment in producing them by guaranteeing their control over the whole distribution of their copies of movie house films, and that such guarantee should take the form of an exclusive copyright capable of being set against a third person like a property right, because contractual relations between film producers-distributors alone are not adequate for the purpose, and because such copyright would not unreasonably obstruct the flow of goods in general. This is the only justification for restricting the right of distribution to film works.

 The right of film distribution as a right to designate the destnation of printed films has thus been brought into being by the system of movie house film distribution as an established practice in the trade and the economic value of printed films.  The other provisions of the Copyright Act relating to film works, i. e., those on the coverage of authors(Article16), the ownership of copyright (Article29) and the period of protection(Article54), may also be attributed to the legislative intent to concentrate the copyright and define the period of protection, thereby achieving the sole purpose of facilitating the movie producers' exercise of the right to utilize their movie house films in the said system of film distribution.

(iii) In order for a work to qualify as a "film work," it must satisfy the fundamental requirements for a work prescribed by the Copyright Act, that it be "a production in which thoughts and sentiments are expressed in a creative way and which falls within the literary, scientific and musical domain"(Article2 (1) -1).
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 Through intellectual activities comprising devices in camera work, techniques of montaging, cutting or the like, film editing etc., images are made by a device creative in composition etc.  Images selected from among those images, through the process of putting them together in a definite order and synchronizing them with sound effects, come out as a movie house film. When projected, it will reproduce a continuous succession of images synchronized with sound effects as an expression of thoughts and sentiments. Thus a movie house film satisfies the requirements for a work.

 Because projecting a printed film, or a copy of a movie house film, will reproduce the same pictures in the same order as in the original film, projecting many printed films in many movie houses makes it possible for different audiences in the respective movie houses to enjoy, unrestricted by time or space, the same audiovisual effects as an expression of the same thoughts and sentiments.

(iv) As seen above, a movie house film is a creative expression of thoughts and sentiments is a product of editorial efforts such as selecting images bearing certain contents and putting them together in a certain order. A copy of such a film (printed film) through its projection can always reproduce a continuous succession of images bearing the same contents, so that through its projection in many movie houses in a vast area it can convey an expression of the same thoughts and sentiments to a vast number of spectators. The system of movie house film distribution is thus premised on the printed films' capability of always reproducing a continuous succession of images bearing the same contents. Suppose we take here into consideration the fact that the Copyright Act's provisions relating to "film works" are intended to solely facilitate the film producers' exercise of the right to utilize their movie house films in the said system of distribution. It would appear proper to conclude that the Act has in view as a "film work" a work characterized by the special quality of a movie house film in that it is capable of giving the same audiovisual effects as an expression of thoughts and sentiments to an immense number of spectators through its projection in a large number of movie houses.

 In the last analysis, in order to qualify as a "film work" within the purview of the Copyright Act, a work must meet the requirements: (1) that it express thoughts and sentiments by putting togetherr selected images bearing certain contents in a certain order, and (2) that by the use of the original film or copies the same continuous succession of images be always reproducible (images bearing the same contents be always reproducible in the same order).
 

(ii) The instant game softs as stored in CD-ROMs have within them not a continuous succession of images prearranged in a certain order and vested with certain contents, but a collection of various images as a material, out of which a concrete succession of images on the screen is made, but not until images are selected and ordering is determined by the player's manipulation. The possibility of the player's selecting and ordering images is not infinite, but
is limited by the quantity of images stored in the CD-ROMs, and consequently the extent of the player's freedom of varying the images on the screen as he pleases by manipulating the game machine is also limited (the extent of such freedom varies with game softs. Generally speaking, it is broad in go, chess, mahjong and like board game or simulation games, while it is narrow in action games, shooting games and the like). In any case, a succession of images in a game as a whole is not determined until the player's manipulation, and it is not preceded by the game author's act of editing or similar act of selecting and ordering through which unambiguouly and finally determined a continuous succession of images as an expression of thoughts and sentiments. Indeed it may sometimes happen that a fragmentary image as a material amounts to a work as is the case with a still picture of a single scene in a movie house film. Such still pictures must be qualitatively distinguished from a whole movie house film from the title to the end mark in that the latter presents a whole continuous succession of images as an expression of certain thoughts and sentiments.

(iii) Game softs in general, including the instant game softs, are essentially characteristic of the active player who through his game machine manipulation can vary a succession of images and sound effects by selecting and ordering images on the screen as he pleases, as against the passive spectators of movie house films who only one-sidedly receive a predetermined succession of images bearing certain contents, along with sound effects. Consequently each player by manipulating his game machine makes a succession of images all his own on the screen. This mode of using a game soft is widely different from that of using a movie house film which is displayed for simultaneous enjoyment of a large audience. In the case of a game softs, copies are directly sold to the consuming public in large quantities, and game soft makers recover their investment from consideration for transfer of such copies. Their way of doing business is a far cry from the peculiar behavior of movie house film producers who recover their investment from box-office profits earned by showing their products to a large audience at one time.

(iv) As stated above, the instant game softs, none of which is a continuous succession of
images projected on the screen with predetermined contents and in a predetermined order, does not fall within the definition of a film work: "a work expressed by a process producing visual or audiovisual effects analogous to those of a film." (Copyright Act, Article2 (3)). Since the instant game softs are not "film works" within the meaning of the Copyright Act, defendant's claim to the right of distribution on the basis of the supposition that the instant game softs are film works is unfounded.