1. The
process wherein "the work is made available or presented to the
public" as referred to in Article 19, paragraph (1) of the Copyright Act
is not required to be carried out through the exploitation of the work
regarding which any of the rights prescribed in Articles 21 to 27 of the same
Act exists.
2. Where a person made a post, via an information
network on the internet, with an image of a photograph, which is another
person's work, and this image was displayed, with its part containing the
indication of the author's name having been cut off, on the terminals of the
viewers of the webpage of that post, the person who made the post cannot be
deemed to have indicated the author's name, even if the viewers could have
viewed the original image accompanied by the indication of the author's name,
under the following circumstances (1) and (2) described in the judgment:
(1) the original image accompanied by the
indication of the author's name can be viewed only on the webpage that is
different from the abovementioned webpage; and
(2) there are no such circumstances where it can
be said that the abovementioned viewers would normally click the displayed
image.
3. Where a person who seeks the disclosure of
identification information of the senders under Article 4, paragraph (1) of the
Act on the Limitation of Liability for Damages of Specified Telecommunications
Service Providers and the Right to Demand Disclosure of Identification
Information of the Senders suffered infringement of his/her right of attribution
regarding a photograph which is the person's work, due to a post containing an
image of the photograph made via an information network on the internet, it can
be said under the following circumstances that the person who made that post
falls within the category of "senders of infringing information"
referred to in that paragraph, and has infringed the right of the person who
seeks the disclosure of identification information of the senders, "by the
distribution of infringing information" referred to in item (i) of that
paragraph: when that post was made, data including HTML (a language for
describing the structure, etc. of a webpage) data concerning the link to the
file of that image and the designation of the manner of displaying the image
was recorded on the recording medium in a specified telecommunications facility
and transmitted to the terminals of the viewers of the webpage of the post,
causing the data of that image to be transmitted from the server of the linked
page to those terminals, thereby causing the image to be displayed on the
terminals with its parts having been cut off as designated, due to which the
indication of the author's name attached to the image was not displayed and the
author's right of attribution was infringed.
(There is a concurring opinion concerning 2.)