اليابان

Date of Judgment: July 17, 1997

Issuing Authority: Supreme Court

Level of the Issuing Authority: Final Instance

Type of Procedure: Judicial(Civin( �o:p>

Subject Matter: Copyright and Related Rights (Neighboring Rights)

Summary of the judgment (decision):

1. A comic character that is described repeatedly in the comics with the same name, appearance, role and other features cannot be regarded as a copyrightable work.

2. Copyright for a secondary work arises only with regard to the creative parts that have been newly introduced in the secondary work and it does not arise with regard to other parts in the secondary work that are common to and identical in substance with the original work.

3. In the case of a series of comic strips, if the term of copyright protection expires with regard to the strip in which a comic character appeared for the first time, copyright can no longer be claimed with regard to said character even before the term of copyright protection expires with regard to the subsequent strips.

4. In order to prove that a person has exercised the right of reproduction under Article 21 of the Copyright Act without interruption as required to fulfil the condition of acquisition by prescription, it is necessary that the situation in which the person appears to exercise the right to reproduce the work in whole or in part monopolistically and exclusively as the copyright holder would do, has continued to exist, and the person who alleges acquisitive prescription must bear the burden of proof of this fact.

5. In the case where the appellee files a claim for an injunction under Article 1, paragraph (1), item (i) of the Unfair Competition Prevention Act (Act No. 14 of 1934) prior to the amendment by Act No. 47 of 1993, and the appellant raises a defense against this claim under Article 6 of said Act on the grounds of its exercise of a trademark right, if a trial decision rendered by the Japan Patent Office (JPO) to invalidate the trademark registration regarding said trademark right becomes final and binding after the conclusion of oral argument in the fact-finding proceedings, the appellee may allege this fact during the final appeal proceedings, in light of the provisions of Article 420, paragraph (1), item (viii) of the Code of Civil Procedure.