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)