Date of
Judgment:
June 28, 2001
Issuing
Authority:
Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial(Civin( �b>
Subject
Matter:
Copyright and Related Rights (Neighboring Rights)
Main
text of the judgment (decision):
1. The
part of the judgment of the original instance court in which the jokoku
appellants had lost shall be quashed and the judgment of the court of first
instance on this part shall be revoked.
2. The
claims of the jokoku appellee on the above part shall be both dismissed.
3. The
total cost of the action shall be borne by the jokoku appellee.
Reasons:
On the
grounds of certiorari by the representatives of the jokoku appeal, ZY and HK:
1. The facts lawfully established by the original instance court are as
follows:
(1) The jokoku appellee is the author of a non-fiction book entitled 'Singing
in the Waves of the Northern Sea' (hereinafter, 'the Work'). The jokoku
appellants, P1 produced a television programme entitled 'Hokkaido Special;
Songs of remote Eurasia - in Pursuit of the Origin of Esashi-Oiwake' ([A
regional folksong], hereinafter, 'the Programme') and broadcasted it on October
18, 1990. The jokoku appellant P is the deputy general manager of the
broadcasting department of the Hakodate Office of P1, and participated in the
production of the Programme as the person responsible for the production per
se.
(2) The Programme has been produced by using the Work as one of the reference
materials, and was based upon it, but there was no reference to the Work in the
Programme.
(3) At the beginning of a short piece entitled 'The Hot Wind in September'
which is contained in the Work, there is a part as reproduced in the upper part
of the attached paper (hereinafter, 'the Prologue'). 'The Hot Wind in
September' is a short piece which depicts the participants in and the audience
of the Esashi-Oiwake National Festival and describes the unique excitement and
emotion of the Festival when the jokoku appellants went to see the Festival for
the first time. In the Prologue, at the beginning, the past and present of the
town of Esashi are introduced, and the Festival is depicted as a peak of the
year in which the prosperity of the past is restored.
It is public knowledge that the town of Esashi prospered through the industry
of catching herring, the town was rich and its prosperity was described with
the phrase 'even Edo [ancient Tokyo] could not compete', but now, with the decline
of herring catching, there is no trace of such prosperity. On the other hand,
in Esashi, the summer festival of the Ubagami Shrine is generally regarded as
the occasion in which the town is in the greatest bustle, and the Esashi-Oiwake
Festival is held annually and is an important event, but the town as a whole
does not bustle much.
(4) The Programme was intended to pursue the origin of Esashi-Oiwake and
conveys the facts that the Town of Esashi suddenly becomes lively in September
when the Esashi-Oiwake National Festival is held and that there are even
overseas participants in the Festival. In the narration of the Programme, in
the part corresponding to the Prologue, there is a part reproduced in the lower
part of the attached paper (hereinafter, 'the Narration').
2. In the present case, the jokoku appellee claims compensation of one million
yen which is the equivalent of the royalty for the use of the Work, half a
million yen in moral damages for the infringement of the moral rights (the
right to have the name credited), and half a million yen of lawyer's fees, in
total, two million yen, vis a vis the jokoku appellants for the infringement of
the copyright (the right of adaptation and the right to broadcast) on the
ground that the Narration is an adaptation of the Prologue.
3. The original instance court in summary, ruled as follows and acknowledged
payment of 200 thousand yen damages which is the equivalent of the royalty, 200
thousand yen of moral damages, and 200 thousand yen of lawyer's fees.
(1) The Prologue and the Narration are similar in depicting that the Town of
Esashi had prospered through herring catching and the bustle was described as
such that 'even Edo could not compete', but now, without herring catching,
there is no trace of such prosperity, and that in September, the Esashi-Oiwake
Festival is held annually and the town regains its bustle and suddenly becomes
lively. It is public knowledge that the Town of Esashi had once prospered
through herring catching and the bustle was described as such that 'even Edo
(Tokyo) could not compete', and that without herring catching, there is no
trace of such prosperity now. However, it is a general view in the Town of
Esashi that the summer festival of the Ubagami Shrine is the occasion in which
the town is in the greatest bustle, and the view that the Esashi-Oiwake
Festival is such an occasion is different from the view of the inhabitants of
the Town, which holds that the summer festival of the Ubagami Shrine is the
occasion in which the town is in the greatest bustle, and is a unique view of
the jokoku appellee, who has a particular compassion with Esashi-Oiwake.
(2) The Narration narrates the substance of the Prologue in the same sequential
order and not only is the content of the expression similar, but the expression
on the event which attracts the greatest bustle of the year is similar to that
in the Prologue, although it is different from the general view, and the
external form of expression is similar in most parts, and therefore, it is
possible to directly perceive the essential characteristics of the form of
expression of the Prologue.
(3) Therefore, it can be said that the Narration is an adaptation of the
Prologue, and the production and broadcasting of the Programme is an
infringement of the right of adaptation, broadcasting and the right to have the
name credited by the jokoku appellee on the Work.
4. However, the above ruling of the original instance court is not justifiable.
The reasons are as follows:
(1) The adaptation of a literary work (Article 27 of the Copyright Law) means
the creation of another work in which those who have access to it may directly
perceive the essential characteristics of the expression of an existing work,
based upon an existing work and by maintaining the essential characteristics of
its expression, modifying, increasing or reducing, or altering its specific
expressions, and newly expressing thoughts or feelings in a creative manner.
Since the Copyright Law is designed to protect the creative expression of
thoughts or feelings (Article 2, para.1, subpara.1 of the Copyright Law), if a
work which has been created on the basis of an existing work is identical to an
existing work merely in a part which is not in itself an expression, or a part
which has no creativity in expression such as the thought, feeling, or idea,
facts or incidents, it should not be regarded as an adaptation of an existing
literary work.
(2) In the present case, the Prologue and the Narration are similar in
describing that the Town of Esashi had once prospered through herring catching
and the bustle was described as such that 'even Edo (Tokyo) could not compete',
that now, without herring catching, there is no trace of such prosperity, but
in September, the Esashi-Oiwake Festival is held annually and the town regains
its bustle and suddenly becomes lively, and also in the sequence of expression.
However, of the parts which are similar between the Prologue and the Narration,
it is public knowledge that the Town of Esashi had once prospered through herring
catching and the bustle was described as such that 'even Edo (Tokyo) could not
compete', that now, without herring catching, there is no trace of such
prosperity and these parts are a mundane introduction to the Town of Esashi,
and the identity can be merely found only in the part which is not an
expression per se. It may be the case that it is a unique view or perception of
the jokoku appellee that the town regains its bustle and suddenly becomes most
lively at the time of the National Festival of Esashi-Oiwake which is different
from the general view of the inhabitants of the Town, but this perception is
not in itself an expression which should be protected by the Copyright Law, and
therefore, it is not prohibited under the Copyright Law to express the same
perception. By expressing the view that in September, the Esashi-Oiwake
Festival is held annually and the town regains its bustle of the old days and
suddenly becomes lively, the Narration can be regarded as identical to the
Prologue merely in a part which is not an expression per se, and in specific
expressions, they are different. Furthermore, the way the Narration proceeds is
the same in the sequence of describing the facts which forms the structure of
the Prologue, but the sequence of description cannot in itself be found to be
original, and has similarity only in the part which does not have originality
in its expression. Besides, if one looks at the Narration which comprises the
above parts as a whole, the length is shorter than the Prologue by far, and has
been broadcasted with the background filmed by the jokoku appellants, those who
have access to it cannot directly perceive the essential characteristics of the
expression of the Prologue.
Although the Narration has been created on the basis of the Work, the parts
which are common with the Prologue are parts which are not an expression per
se, or have no creativity in expression, and one cannot perceive the essential
characteristics of the expression of the Prologue from the Narration, and therefore,
the Narration is not an adaptation of the Prologue.
5. Conclusion
Thus, as explained above, the production and broadcasting of the Programme is
not an infringement of the right of adaptation, broadcasting, or the right to
have the name credited regarding the Work, and therefore, the claims for
compensation by the jokoku appellee should all be dismissed. The ruling of the
original instance court and the court of first instance which acknowledged part
of the claims of the jokoku appellee, based upon a different view, has erred in
law which evidently affects the judgment. The arguments are in line with the
above and with grounds. Therefore, the part of the judgment of the original
instance court in which the jokoku appellants had lost shall be quashed, the
judgment of the court of first instance on this part shall be revoked and the
claims of the jokoku appellee shall all be dismissed.
Thus, the justices unanimously rule as the main text of the judgment.
(Translated by Sir Ernest Satow Chair of Japanese Law, University
College, University of London)