|FACTS AND REASONS||Appellant's claims|
|Appellant's causes of claims|
|Parties' arguments and this court's opinion on issue 1|
|Parties' arguments and this court's opinion on to issue 2|
Decision delivered on March l8, l999, and original received on the same
(as stamped by Court Clerk Shoji Inouye)
1-18-12 Minowa-cho, Kohoku-ku, Yokohama
represented by Yoichi ERIKAWA, President
|Councel for Appellant||Hiroaki MORIMOTO, Attorney at Law
Masayuki MATSUDA, Attorney at Law
Yumiko WASEDA, Attorney at Law
Hirotaka SAITO, Attorney at Law
Tetsuya TANIDA, Attorney at Law
|Subordinate Counsel for Appellant||Takuya YAMAZAKI, Attorney at Law|
|Appellee||Gijutsu Hyoronsha, ltd.
8-8 Aizumi-cho, Shinjuku-ku, Tokyo
represented by Iwao KATAOKA, President
|Counsel for Appellee||Arata SHIMURA, Attorney at Law
Keiji SUGIYAMA, Attorney at Law
Toru NISHIKI, Attorney at Law
Yasuyuki FUJITA, Attorney at Law
FACTS AND REASONS
Appellant has prayed for reversal of the judgment of the court below and also for judgments to the following effect (nos. 2 and 3 are new claims) together with a declaration that those judgments are amenable to provisional executions.
1 Appellee shall not manufacture or distribute memory media as described in the accompanying list. 2 Appellee shall pay to appellant the sum of l9,224,000 yen and an interest on it at the rate of 5 per cent per annum from July l7, l996 to the day of payment. 3 Appellee shall pay to appellant the sum of l,000,000 yen and an interest on it at the rate of 5 per cent per annum from April 23, 1998 to the day of payment,
Appellee has prayed for dismissal of the appeal and also for a judgment to the following effect with regard to appellant's new claims in this instance:
1 Appellant's new claims in this instance are dismissed (for failure to meet procedural requirements ). 2 (alternatively, in anticipation) Appellant's new claims in this instance are dismissed (on the merits).
1 Appellant is the owner of an author's personal (moral) rights and property rights to a PC simulation game program entitled "The Three States Story III" (hereinafter called the instant work). 2 Appellee is marketing a book under the title (commercial name)."An Unofficial Guidebook to The Three States Story III" (hereinafter called appellee's book). The program as described in the accompanying list (hereinafter called appellee's program) stored on the floppy disc attached to the book infringes appellant's (author's) personal right (the right to preserve the integrity of the work) and its property right (the right of adaptation). 3 Therefore, appellant demands by virtue of its (author's) personal right that appellee be enjoined from manufacturing and distributing memory media as described in the accompanying list(claim first lodged in the first instance), and be ordered to pay a solatium(I 3 above), and by virtue of its property right that it be ordered to pay damages (I 2 above).
(1) Appellant created the instant work on February 4, 1992, and owns as author's personal rights. (2) Appellee has been marketing appellee's book since February 25, l993, to which is attached a floppy disc containing appellee's program. (3) (i) The instant work at the time of shipping has about 500 characters set up as original kings and original generals, which were borrowed from an ancient Chinese classic, "The Three States Annals." In terms of the thoughts and emotions derived from it, the power (ability) of its characters are analyzed into six elements, and a numerical value between l and l00 is assigned to each character as his power value. The instant work also allows a user to create, in addition to the original kings and original generals, 68 more characters (8 new kings and 60 new generals) by using a data registration program, and to assign new power values to them. A user can enjoy the development of the game with the original kings and original generals only without creating new kings and new generals.
(ii) The instant work includes a file called "NBDATA" as a file for a user's registration of new kings and new generals, and "NBDATA" contains a data registration program (hereinafter called appellant's registration program) for writing in power values. Appellant's registration program contains:
(a)a program for reading information from the keyboard,
(b)a program for writing information so read into memory as power values,
(c)a program for storing the power values so written in on a floppy disc as "NBDATA" as power values, and
(d)a check routine program for ensuring that power values written in by a user are between l and l00.
(4) (i) Appellee's program is a distinct program that replaces appellant's registration program contained in the instant work, and is a data registration program that contains no such check routine program as appellant's registration program does, so that it allows a user to assign power values beyond 100 to new kings or new generals.
(ii) Appellee's program is one that allows a user to write power values into "NBDATA" on a floppy disc without having to search for the floppy disc and the file in it where wanted data are stored, or to analyze the structure of the operation or of the data.
2.Is the game of the instant work (hereinafter called the instant game) a cinematographic work (film work) (Copyright Act, Article 10 (l) -7) or a game work (Copyright Act. Article 2 (l) -l)?
3.Is appellant the author of a film work or a game work, and the owner of the copyright to it?
4.Does appellee's program modify the film work or the game work?
(l) Appellant's argumentIn a video game as in the instant case, scene development of the game can be widely diversified by the way a user plays it, but all such varieties of development are in store in appellant's main program or CG data. The use of random sampling digits in the instant game is also so programmed by appellant. Therefore, the author and the copyright owner of development of the instant game.(2) Appellee's argumentEven if appellant's registration program is used in inputting, game development .is produced by the playing user. Then it is the user, not appellant, that is the author and the copyright owner.
5.Is appellant's program an adaptation of the film work or the game work?
(1) Appellant's argumentWhen the instant game is played with new kings and new generals to whom power values inputted by means of appellee's program, game development will happen that can never happen if appellant's program is used. Then it is the act of modification through adding game development that can never happen if appellant's program is used.(2) Appellee's argument(i) If the image characteristics such as generals' features are not affected by the use of appellee's program, there is no modification.
(ii) The limitation of power values is only a rule. Since a rule is not a work of authorship, it does not modify the instant work.
(iii) In a game in which widely diverse development is expected, thoughts and emotions expressed in it are only remotely related to the author's personal rights.
(iv) Since the instant game has such flexibility that it lacks unity or integrity as a work, it is not eligible for protection by an author's personal rights.
(v) Since appellee's program is highly valued by users for the variation it adds to the instant game when they would otherwise soon get tired of it, its manufacture and distribution should not be looked upon as a copyright infringement.
(vi) It is by no means specified how a series of images develops in the instant game, nor can it be specified how it has been modified.
(vii) Appellant insists on slavish observance of appellant's rules by a user who is a consumer of a game soft, even at his own home. Appellant goes too far.
(viii)Admitting, for argument's sake, that there is a modification, if it is not made public, can it be called a violation of an author's personal rights?
6.What is the amount of damages due to appellant?
(1) Appellant's argumentWhen appellee's program is used to make characters appear with power values beyond l00 up to 255, game development will differ from the story of the instant work which limits power values between l and l00. It may include such game development as can never happen if appellant's program is used. Thus development and images with new kings and new generals with power values inputted by using appellee's program is a derivative work that has its original in the instants work.(2) Appellee's argument
Appellee's program that allows assigning to characters power values beyond 100 is an adaptaion of the instant work that sets the maximum of 100. Thus it is a derivative work and infringes the right of adapting the instant work.(i) When the game is played with power values inputted by means of appellee's program, the game development will not be fixed in any material, so that there is no derivative film work.
(ii) A derivative work, to qualify as such, must meet the requirements that it stand by itself, that it be fixed, and that it be assignable independent of the original work. None of them is met.
(iii) Appelant's statement is based on the supposition that appellant's registration program limits game development. But this supposition lacks concreteness.
(iv) A game soft partakes strongly of the nature of an economic asset, and the sale of appellee's program tends to expand the market for the instant game. It should not be looked upon as an infringement of the right of adaptation.
7.Is appelee the perpetrator of all the copyright infringements?
(l) Appellant's argumentAppellee's book is priced at 2136 yen exclusive of tax, and was published in no less than 30,000 copies. The profit of 30 % on the list price or the royalty of the same percentage on reproduction and distribution will come up to l9,224,000 yen. This is the amount of damages attributable to the infringement of the copyright as a property right.(2) Appellee's argument
As solatium for the infringement of the author's personal right may be reasonably assessed at the sum of l,000,000 yen.Appellee disputes appellant's argument on this issue.
8.Does the act of appellee come under the Copyright Act, Article 20 (2) -3?
(l) Appellant's argumentWhen using appellee's program, a user has only to perform operations such as inputting power values beyond l00 and pushing computer keys in accordance with the operating instructions in appellee's manual and on the screen. All other operations are performed by appellee till power values are written into "NBDATA," so that the perpetrator of the infringements is appellee. Since the sale of appellee's program leads to the consequence that the program of the instant work is modified, the sale is an illegal act distinct from the user's act.(2) Appellee's argument
In appellee's book it explains as a distinctive merit that appellee's program is capable of being used to input power values beyond 100. Besides, on the book jacket appellee makes a selling point of that capability, positively encouraging a prospective user to input power values beyond l00. Thus it positively induces him to violate appelllant's right to preserve the integrity of the instant work and its right to adapt it.
From the foregoing we may say that the sale of appellee's program to a user amounts to placing him under its control while he is using the program..Assuming, for argument's sake, that to execute appellee's program is to modify the instant work, it is a user, not appellee, that is the perpetrator.
9.Does the act of appellee come under the Copyright Act, Article 47bis (l)?
(1) Appellee's argumentAppellee's program corrects the defects of appellant's registration program in the instant work, and offers convenience needed to make the use of it more effective, so that it does not infringe the right to preserve the integrity of a work under the Copyright, Article 20 (2) -3 or -4 and in the light of the spirit of Article 47bis.(2) Appellant's argumentIt is one thing to offer convenience, and quite another to make the use (of appellant's registration program) more effective. Now defects or inconvenience as described by appellee derive from the peculiar property of a game, and have nothing to do with the use of a computer.
(l) Appellee's ArgumentThe owner of a copy of a program is allowed to make adaptations for his own use of it by the Copyright Act, Article 47bis. Adaptations of the program itself are thus made lawful.. Then playing with appellee's program which leaves the program intact is even more lawful..(2) Appellant's argumentAdaptations of a program are made lawful by the Copyright Act, s. 47bis only to the extent deemed necessary for its use in a computer, not for making arbitrary adaptations for his own use.
On this issue the parties argue as follows:
(2) Appellee's argument
(i) In the instant work the power values written by a user into "NBDATA" are limited to figures between l and 100, and "NBDATA" into which any other power values are written is unimaginable as part of the instant work. It must be noted that when a tool called item is held by a character, its power value may present the false appearance of being beyond 100. But no character has power values exceeding 100 with regard to any of the six power elements.
By contrast, when a user plays the instant game with power values exceeding 100 written into "NBDATA" by means of appellee's program, game development will go beyond the bounds set by appellant. Now if the author is going to give creative expression to his thoughts and sentiments in game development, he needs must put a certain limit on the extent of data to be inputted. To formulate, and to offer for use, a program that makes it possible to input values that exceed the limit and are so overwhelmingly powerful as to give an enemy finalizing damage is an act that inflicts damage upon the author's expression of his thoughts and sentiments. Thus it is an act of modification that infringes upon the right to preserve the integrity of a work.
On the jacket of appellee's book appear these words: "Mental power ... military power 200! Are you a monster?" Chapter 5 of the book which gives an account of appellee's program is entitled "Making a Monster." These are selling words which evidence a modification that adds such game development as can never happen if appellant's registration program is used in inputting data.
It has been verified that the use of appellee's program varies outputted scenes and causes abnormal game development as described below:
(a) If a game is started with values of 225 or over assigned to land or water command ability, it often happens that games will not go on at the time of increasing or decreasing the remaining soldiers by the recruitment command or reorganization command.
(b) If values of l6l or over are assigned to mental power of generals, damage to soldiers due to "the stratagem of pitfalls" is always at the constant figure of 99, when it would properly be inversely proportional to mental power.
(c) If a value of 228 or over is assigned to land or water command ability, the number of soldiers can be practically increased without limitation.
(d) If a value of 228 or over is assigned to land or water command ability, the scenes will sometimes come to a standstill.
(ii) The court below held that the story developed by playing the instant work is not a program work, and that "NBDATA" is data, not a program work. We dilate on appellant's argument against this opinion as follows
(a) A program work does not have to consist only of programs in the narrow sense of the term. Indeed the instant work separates the part of data from the part of programs in the narrow sense so as to make the best use of a computer's specific quality. A computer does not operate with a program alone. A program does not get any meaning till it is joined by data. So the court below erred in holding that the part of data is not a program work.
(b) The instant work has a built-in check routine program designed to prevent all characters from having power values beyond 100. This limitation of the extent of power values and of their combination will help preserve the integrity of thoughts and sentiments. Appellant as the author of the instant game provides a player of the instant game with appellant's registration program as a means of inputting power values. That is the only program provided for that purpose.
The author of a computer game, when creating a work of authorship in the form of a computer game, gives expression to his thoughts and sentiments in story development and scene output. For such expression he has to formulate programs and arrange data, so that to change data is a modification of expression of a computer game work. To prevent the use of appellant's registration program including the check routine program by replacing it with appellant's program at the time of inputting power values is an excision (cutting off) from the instant work. Writing power values beyond the limit into "NBDATA" on a floppy disc is a modification of the instant work against appellant's will.
(c) Appellant's registration program has within it the check routine program for these reasons:
Firstly, a game balance must be taken into consideration in a game in which the player acting the role of a king has to work out an elaborate strategy from an all-round viewpoint of domestic politics, diplomacy and military affairs with the ultimate object of bringing all China under his rule. Concrete cases where appellee's program disturbs such a balance are, for instance, (i)b and c above.
Secondly, care must be taken lest the game should technically go wrong. A game maker has only to limit permissible values to be inputted if he wants to keep debugging within prescribed bounds. Otherwise debugging will entail a vast expense of time and labor. Production cost cannot be recovered.. Besides, a 100% debugging is impossible. Concrete cases where apellee's program causes technical trouble are, for instance, a and d above.
(d) When the instant game is played with power values beyond 100 inputted by means of appellee's program, it sometimes happen that the game comes to a standstill or goes beyond control. An essential element of a program is that it normally operates at the time of execution. Then there is no denying that appellee has destroyed the program of the instant game. Thud it infringes the right of its integrity.
Appellee's program is one which makes it its sole purpose to bring about such results. Thus to execute it on a computer is an act of modification.
(e) It is also an act of modification to manufacture and distribute a floppy disc storing appellee's program which has the sole purpose of causing a modification of the instant work through a user's use of it as stated in (i) above.
2 This court's opinion on issue 1
(i) (i)"NBDATA" is not a program work. Nor does appellee's program change power values set by the instant work, but simply makes it possible to write in new power values. It does not distort, excise or otherwise modify the instant work.
As it is natural with a simulation game like the instant work, power values of all characters, original kings, original generals, new kings, new generals, change in many ways during a game. A user can freely set power values between l and 100 for new kings and generals. The instant game is not designed in such a way that appellant's registration program with a built-in check routine program is a user's only means of creating and registering new kinds and new generals. It has various tools that enable him to write power values beyond l00 into the "NBDATA" of the instant work. Since the number of possible combinations of such power values is practically infinite, the task of preserving the integrity of thoughts and sentiments is beyond the power of the built-in check routine program.
(ii) Appellee's program is not intended to modify the instant work. Instead, itt is intended to remedy the following defects of appellant's registration program;
(a) The power values of new kings and new generals are determined by random sampling digits, so that they do not well reflect the will of a user.
(b) There is a limit to power values that can be set.
(c) It is inconvenient to input in Chinese characters.
It is left entirely to a user to choose power values, whether below 100 or above 100.
(iii) Appellant alleges that appellee's program often causes technical trouble. But as a matter of fact appellee's program has never brought the instant work to a standstll or destroyed it. (iv) The act of manufacturing and distributing floppy discs storing appellee's program does not amount to a modification of the instant work.
(2) Now we proceed to consider the issue on the basis of the above findings. In the whole flow of the program of the instant work, all data on "NBDATA" are inputted and created by means of appellant's registration program. . When a user wants to play the game with the data of new kings and new generals he created, the program of the instant work will analyze the data on the "NBDATA" together with the preexisting data in the instant work for the development of the game. The data on "NBDATA" are presumed to be written in a certain format prescribed by the program of the instant work, and such data are written in by the main program of the instant work and analyzed into the next action by the same program.
(i) The instant work contains programs: a main program, a program for data registration (here after called appellant's registration programs) and a check routine program, and data: data files prepared in advance by appellant, data files to be made by a user and "NBDATA" into which a user writes power values for new kings and new generals created by him (B13).
"NBDATA" at the time of shipping is a file which contains only data indicating that there is no power value written in (A8, Bll), and a warning that the maximum power value is 100 is given in the start-up manual of the instant work(A6, the gist of the whole argument).
(ii) In the instant work, power values of new kings and new generals to be set by a user and those of original kings etc. stored and accumulated in advance are written as data into its main program, and these data as the program's furcating element proceed to the next step of game processing(A6, B2). (iii) In the instant work, it is the built-in check routine program within appellant's registration program that limits power values of new kings and new generals to figures between l and l00(uncontroverted). (iv) Appellee's program is a distinct program which is made available to a user for data registration as a replacer for apellant's registration program(uncontroverted).
When, therefore, data are inputted into "NBDATA, " its format performs a role in trans- mitting the numerical values (parameters) in it to the main program of the instant work. Thus it functions as part of the main program. And the numerical values written in the format are also incorporated and merged into that program to define the action. It cannot be categorically denied that it sometimes does amount to a modification of the program of the instant work to input numerical values into "NBDATA" by means of a program other than appellant's registration program, or to provide such means of inputting.
(3) Now we consider whether inputting data into "NBDATA" by means of appellee's program and putting the main program into action amounts to a modification of the program of the instant work.
(4) Such being the case, appellant's theory that the act of inputting power values into "NBDATA" by means of appellee's program instead of appellant's registration program amounts to a modification of the instant work is unfounded, so that we cannot find appellee's program modifies the instant work.
(i) We first consider the act of inputting power values without using appellant's registration program that limits them to figures between l and l00. Since "NBDATA" itself is not a program work, it is evident that it does not infringe the right to preserve the integrity of the instant work. (ii) We next consider whether the act of putting the main program into action by using "NBDATA" storing power values beyond 100 amounts to an infringement of the right to preserve the integrity of the instant work. It is a simulation game program designed to find expression in a wide variety of ways. Even within the objective limitation of behavior placed by the main program, a user can freely operate it to make an infinite variety of ways of game development. When the extent of expression of the instant work is thus left unclear, the mere fact that power values beyond 100 are used does not instantly lead to the conclusion that it infringes the right to preserve the integrity of the instant work. (iii) So we need an examination of the extent of the instant work's expression. In this connection appellant's claims that a game balance was a factor considered in limiting the extent of data to be inputted into "NBDATA." This claim, if well founded, may throw light on the extent of the instant work's expression. However, the instant game develops in a vast variety of ways, so that the concrete substance of what appellant calls a game balance, or the concrete contents of the instant work's expression, are not necessarily clarified. Nor is it clarified, either, even by the whole of evidence produced in this case how the instant work is concretely modified as a matter of fact by the way the instant game develops if the power values beyond the limit of appellant's registration program are set by means of appellee's program and transmitted to the main program.
Appellant claims that it intended to create an attractive game development based on a sound game balance, and that if the instant game is played with power values beyond 100 inputted into "NBDATA," game development will go out of the bounds contemplated by appellant. Even if that was inwardly intended, the instant game is characterized by the diversity of development based on the free choice of a user, so that the concrete extent of the game development contemplated by appellant as it claims is not objectively clear. Supposing that it is the extent of expression which appears only when new kings' or generals' power values within the limit are inputted into "NBDATA" by means of appellant's program, we see no distinct difference in game development, whether power values inputted are between l and l00 or beyond 100. For, as stated below, even if power values beyond 100 are inputted into "NBDATA" (except when they go to extremes), they are just as well received into and processed by the main program, so that the game develops in various ways according as the user chooses. With all the contention of appellant, therefore, we are left in the dark about how the instant work's expression is concretely modified as a matter of fact.
(iv) We will explain below the reason for this conclusion in connection with the claim of appellant:
(a) Indeed it is true by the evidence (A21, 25)and the gist of the whole argument that when power values beyond a certain limit are inputted by means of appellee's program, the game will develop as stated in I (l)(i)(b) & (c). But this does not justify the finding of a modification of the instant work by appellee's program.
To be sure, the program of the instant work has a built-in program within appellant's registration program called a check routine program which rejects all power values beyond a certain limit. But there is no built-in guard against creation or registration of new kings or new generals except by means of appellant's registration program, or against power values inputted into "NBDATA" by means of a program other than appellant's registration program (gist of the whole argument). The program of the instant work is not designed to reject power values inputted into "NBDATA" not by means of appellant's registration program, but to receive without screening and process them as parameters of the main program. A user well experienced in handling a personal computer does not have to use appellant's registration program to create new kings or new generals or input any power values, if he uses a multi-purpose debugging tool of MS-DOS, of which Ecology then widely available was a typical example. Before 1992 the year the instant work was created, magazine articles had already appeared which explained how to create new characters in games in general, not in the instant game alone (A8, 27, B10--12).
When, therefore, a user who has bought the instant game, is going to operate the program of the instant work, admittedly it is entirely up to him to decide whether to use appellant's registration program in inputting into "NODATA" power values for new kings and new generals or not. A computer program appeared in the Copyright Act as a new comer distinct from traditional works of authorship, so that there is not necessarily any consensus on the concrete extent of the right to preserve the integrity of such a work. At this juncture an author's expressed intention is a potent factor in determining that extent, but in view of the program's structural problem just referred to, the intention of appellant as the author regarding the extent of impermissible modification of a program capable of processing multifarious game development as above stated (in other words, the scope of protection affordable to the right to preserve the integrity of a program)cannot have appeared to a user to be definite and absolute. This fact reinforces the finding that the contents of the program's expression are objectively indefinable.
(b) We find that the sub manual of the instant work warns that the maximum power value (of a new king or a new general)is 100(A6), but this warning in itself does not define the concrete extent of the instant work's expression. For "The Heroes in the Three States Annals," a sub manual attached to the instant work has a passage that reads: "There is no fixed route to any victory in the simulation, Make your own story with an unpredictable development."(B20). On the reverse side of a package of the instant work appears a statement, "You can create as many as 60 original generals in addition to new kings, and enjoy a story all your own."(A1). These statements taken into consideration, the sub manual's warning about the maximum power value 100 leaves us skeptical about its meaning in game development.
(c) If we add to this circumstance the fact that the instant work is unclear with regard to the concrete contents of its expression in game development, the inescapable conclusion is that the instant work does not definitely specify subject matter amenable to modification..
(d) Additionally, we find from evidence (A10. 13, 29) and the gist of the whole argument that when power values of 228 or over by means of appellee's program are inputted as in 1(1)(i)(a)& (d)above, the instant game often comes to a standstill. But it is a passing phenomenon indicating that registered power values of new kings or new generals are outside the normal operation of the program of the instant work. In case such passing phenomena affect the subsequent operation of the personal computer or of the instant work, we might call it a modification of the instant program in a sense, but the instant work's program itself is not modified, and moreover it is free from such influence as described in(a) or (d). (A user is well aware that the game stoppage is caused by the use of apppellee's program, not of appellant's.So he has only to start again on his own responsibility.)
(1) Appellant's argument
The instant work satisfies all the following requirements for a film work. Even if it does not fall within the definition of a film work, its visual expression makes it a PC simulation game similar to a film work.
(2) Appellee's argument
(i) That it be a work of authorship (the requirement of contents)
In the instant work the author, based on the characters, history, geography, settings of a Chinese classic "The Three States Annals," expresses his thoughts and sentiments in a creative way in the form of a PC simulation game in which the player (user) as one of the kings works out a strategy embracing internal politics, diplomacy and military affairs with the conquest of whole China in view. It falls within literary, scientific, artistic or musical categories. And it also meets the following requirements, so that the instant work qualifies as a film work within the meaning of the Copyright Act.
(ii) That it be expressed by a process producing visual or audiovisual effects analogous to those of a motion picture (the requirement of the process of expression).
Images of the instant work are projected on the display of a personal computer by means of the programs and data that constitute the instant work. If that personal computer has a sound device attached to it, it produces sound effects and background music as an accompaniment to the images on the display. On the opening screen an animated picture appears and continues.
As soon as the user finishes inputting certain conditions, the instant work is brought into action and a succession of images appear on the display like an animation movie.
(iii) That it be fixed(the requirement of the form of existence) Images of the instant work on the display are stored and fixed on a floppy disc.
In a game soft the requirement of the process of expression(analogousness to a movie)will not be deemed satisfied until a work produces a stream of images like visual effects of a movie.2 This court's opinion on issue 2
A quiz game or a simulation game cannot be a film work, because images in motion are not an essential element. Unlike an action game that requires quick reaction by its very nature, it gives greater weight to intellectuality in operating it Besides, on the screen of the instant work as a whole, appears no expression by means of images that can make a film work of it.
(1) Now the instant game is a simulation soft that comes under the category of simulation softs. It lays primary emphasis more on a user's accumulated ponderation than on enjoyment of a flowing stream of images expressed by the program on the display. The program is supplied in floppy discs in which it is stored (the instant work for a personal computer in NEC PC 800 series or Epson's PC 286/386 series is shipped in 3 2HD floppy discs in which it is stored. (A1, B1). Seeing that the media contain not only a program for images and sound effects, but also one for simulation, it is evident that data for images and sound effects on the display must be extremely limited. The instant work has an overwhelming number of still pictures, not all of them being continuously in real motion. In the instant work animated pictures are used only in part of battle scenes, and images in battle scenes and man-to-man combat scenes, drawn as they are from data and programs on those meager floppy discs, are stereotyped, producing recurrent stereotyped pictures and sound effects (B26 and gist of the whole argument). But this may be accounted for by the idea that, while a user is pondering by way of simulation, he should be enabled to do it in front of still pictures.
In view of all these findings, we cannot deem the instant game expressed by a process of producing visual or audiovisual effects analogous to those of a motion picture, so that we can find in the instant work neither a film work nor a work analogous to it.
In addition, the instant game on its starting scene shows a series of letter images accompanied by sound effects, but this is limited to the starting scene and is independent of any one of the images that follow, so that the starting scene alone cannot support the finding that the instant work is a work of authorship as a motion picture.
(2) Appellant argues that the instant work is a game work within the meaning of Copyright Act, Article 2 (1) -1. Since the Act has no definition of a game itself, we cannot determine whether there is an infringement of a copyright to the instant work as a game work In our understanding, he claims in substance that the instant work is a work analogous to a film work protectable under the Copyright Act. As we held in (1) above, however, the instant work is not a work analogous to a film work.
As above stated, without going so far as to decide the other issues, we may say that appellant's petition for an injunction (petition brought up from the court below) based on an author's personal right (the right to preserve the integrity of a work) and its claim for a solatium added in the present instance are unfounded, and that so is its claim for damages based on an author's property right (right of adaptation)added in the present instance, because we do not find it a work of authorship.
It may be added that all the claims added in the present instance are concerned with the Copyright Act as were the claims brought up on appeal, and have the same basis with them. These claims do not go beyond a mere attempt to supplement parties' arguments on legal interpretation or to add written evidence, so that they do not adversely affect the proceedings or otherwise prove greatly dilatory. Therefore, appellee's motion to dismiss is rejected.. Appellee's protestation that appellant is barred by the closed preparatory proceedings from making any amendment or addition is rejected for the same reason.
Accordingly, this court decides as in the Formal Judgments.
Tokyo High Court, Civil Division 18
|Judge Noriaki NAGAI|
|Judge Shuhei SHIOTSUKI|
|Judge Masaki ICHIKAWA|