Date of
Judgment:
07.09.2000
Issuing
Authority:
Supreme Court
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
appeal shall be dismissed.
2.
The cost of appeal shall be borne by the jokoku appellant.
Reasons:
On
the grounds of appeal by the representatives for the jokoku appeal, Iwao
Hanaoka, Katsuyoshi Shinbo, and Takashi Kizaki:
1.
Article 2, paragraph 2, subparagraph 1 of the Copyright Law defines a work to
be protected by copyright as a 'creative expression of thought or feeling which
falls within the scope of literature, science, art, or music'. It is reasonable
to understand that for the printing fonts to qualify for copyright protection,
the fonts must have originality such as distinctiveness as compared with the
existing fonts, and also must have an atheistic feature which, in itself,
serves as an object of artistic appreciation. If such a requirement of
originality is relaxed for printing fonts, or an atheistic feature from a
utilitarian point of view is considered to be sufficient, in order to publish
novels, articles etc., using these fonts, indication of the name of the author
of the printing fonts and his consent will be required, the consent of the
author will also be required for copying the work, and it may become impossible
to create or improve printing fonts based on similar existing fonts. This will
be against the goal of the Copyright Law which aims at the protection of the
rights if the authors while taking into account the fair use of the works, and
thus contributing to the development of culture. Furthermore, the form of
printing fonts are inevitably limited, since they are to enable letters to
perform the function of communicating information; if the fonts are to be
generally protected by copyright, under the system in which the emergence of copyright
does not require examination, registration, or external publicity, copyrights
would emerge on numerous fonts which are only slightly different, and this will
make the legal relationship complicated and create confusion.
2.
In the present case, according to the facts established by the original
instance court, the set of printing fonts included in list three attached to
the judgment of the first instance court (Gona U) and in list four (Gona M;
hereinafter, together with Gona U, 'the Fonts of the Appellant') is based upon
various Gothic fonts which have been used as printing fonts previously, and has
developed these fonts, and although it is a 'design which has a fresh and
graphical sense not found in the existing Gothic fonts', has been created upon
the idea of 'fonts with atheistic functions inherent in letters which are easy
to read, and are straightforward and not eccentric', and therefore, does not
largely differ from the design of the existing fonts. Under such circumstances,
the Fonts of the Appellant cannot be regarded to have the originality and
atheistic features mentioned above, and therefore, does not qualify as a work
as provided by Article 1, paragraph 1, subparagraph 1 of the Copyright Law. Nor
can the Fonts of the Appellant, which do not have the originality of an
atheistic feature, be regarded as a 'work of applied art' which is protected by
the Berne Convention on the Protection of Literary and Artistic Works.
3.
Conclusion
As
explained above, the judgment of the original instance court on the primary
claim of the appellant which ruled that the Fonts of the Appellant are not a
work to be protected by copyright is justifiable, and the process of the
judgment is not unlawful as argued by the appellant. The arguments of the
appellant are not acceptable.
Concerning
the supplementary claim, the ground for the certiorari has been excluded by the
decision on certiorari.
Therefore,
the justices unanimously rule as the main text of the judgment.
(Translated by Sir Ernest
Satow Chair of Japanese Law, University of London)