اليابان

Date of Judgment: 07.09.1978

Issuing Authority: Supreme Courts

Level of the Issuing Authority: Final Instance

Type of Procedure: Judicial (Civil)

Subject Matter: Copyright and Related Rights (Neighboring Rights)

Main text of the judgment (decision):

1. The jokoku appeal shall be dismissed.

2. The cost of the jokoku appeal shall be borne by the jokoku appellant.

Reasons:

On the grounds of the jokoku appeal by the representatives of jokoku appeal, TK and JI:

According to the previous Copyright Law (1899 Law No.39), the author has an exclusive right to copy the work, and if a third party copies the work, he is liable for an infringement of copyright as a forger, but since 'a copy of a work' in this context means duplication based upon an existing work which makes it sufficiently possible to recognise its content and form, even a work which is identical to an existing work, if it has not been reproduced on the basis of an existing work, is not a copy and there is no room for the emergence of a problem of infringement. A person who had no opportunity to have access to the existing work, and thus, was not aware of its existence or content has not reproduced an existing work, and therefore, is not liable for the infringement of copyright regardless of whether he was negligent or not in not being aware of the existence and content of the existing work.

According to the facts lawfully established by the original instance court, musical piece A or its part P had been known in Japan only to some music experts and music lovers, until the musical piece Q was created by the jokoku appellee C in 1963, and was not widely known to all music experts and music lovers. On the other hand, the jokoku appellee C was employed by a broadcasting company with an enormous collection of foreign and Japanese records and music, in around 1952 worked temporarily handling records, in 1963 was in charge of the planning and production of television programmes including music programmes as the general manager of directing, and in the meantime, produced songs and librettos, but there were no special circumstances as a result of which he should be found to have been aware of the musical piece A when he produced the musical piece Q. If one compares P and Q, there are similarities in the melody which comprises the motif, but this melody belongs to a type of melody which is often used in popular songs like the Piece A or Piece B which contains Piece Q and there is a possibility that the same melody appears by coincidence. Moreover, in Piece Q, there is a melody which is not contained in Piece P. From these facts, it cannot be assumed that the jokoku appellee C had an opportunity to have access to the Piece P at the time he was producing Piece Q, not to mention the fact that he had access to Piece P before producing Piece Q. Thus Piece Q cannot be found to be a copy of Piece P based upon Piece P, and therefore, even if the jokoku appellees C and Joint Stock Company D licensed the copy of Piece B which contains Piece Q, this cannot be regarded as an infringement, by copying Piece P, of the copyright on Piece A which contains Piece P. The judgment of the original instance court which is in line with the above is justifiable and it is not unlawful as argued. The argument either does not correctly understand the judgment of the original instance court or merely criticises the judgment based upon unique views and is unacceptable.

Therefore, in accordance with articles 401, 95, and 89 of the Code of Civil Procedure, the justices unanimously rule as the main text of the judgment.

(Translated by Sir Ernest Satow Chair of Japanese Law, University of London)