Date of Judgment: March 15, 1988
Issuing Authority: Supreme Court
Level of the Issuing
Authority: Final Instance
Type of Procedure: Judicial (Civil)
Subject Matter: Copyright and Related Rights
Main text of the
judgment (decision):
1. The part of
the present jokoku appeal in relation to the judgment of the original instance
court concerning the claim for compensation by the jokoku appellee on the
ground of an infringement of the right of performance by singing accompanied by
the karaoke play shall be dismissed on substantive grounds.
2. The
remaining part of the appeal shall be dismissed on procedural grounds.
3. The cost
of appeal shall be borne by the jokoku appellant.
Reasons:
On the ground
of judgment by the representative for the jokoku appeal, Chiharu Abe:
According to
the facts lawfully ascertained by the original instance court, the jokoku
appellants installed in the snack bars jointly owned by the appellants karaoke
equipment and karaoke tapes in which copyrighted musical pieces which the
jokoku appellees manage by having the copyright and the performing rights
derived from the copyright transferred by the holder of the copyright for trust
management. There, hostesses and other employees of the snack bar operated the
equipment, gave customers an indexed list of musical pieces, handed them a
microphone and encouraged them to sing, and made the customers sing in the
presence of other customers accompanied by the music recorded in the karaoke
tape. They often made the hostesses sing alone or together with the customer,
and thus enhanced the lively atmosphere of the snack bar with the intention of
collecting customers and increasing profit. Under such circumstances, not only
in cases where the hostesses sang, but also when the customers sang, the
subject entity who used the copyrighted music by performance (singing) was the
jokoku appellants, and the performance was in public and for profit making
purposes. This is because it is evident that the singing by the customers and
hostesses was intended for the public to listen to directly (Art.22, Copyright
Law), and even when only the customers were singing, they were not singing
without the involvement of the appellants; through the soliciting by the
employees of the appellants of customers to sing, the choice of music within
the scope of the karaoke tape provided by the appellant, the operating of the
karaoke equipment by the employees, the customers are understood to have been
singing under the management of the appellants. On the other hand, the
appellants accepted singing by customers as part of the snack bar's business
strategy and by using this, enhanced the atmosphere as a karaoke snack bar, and
also intended to attract customers who prefer such an atmosphere and thus
increase profit. Thus, the singing by customers as indicated above can be seen
as equivalent to the appellants themselves singing from the viewpoint of the
regulation of the Copyright Law.
Therefore,
the appellants have infringed the performing rights which are derived from the
copyright on the musical work by allowing the hostesses and other employees and
customers to sing, accompanied by the karaoke music[,] the pieces which are
copyrighted works managed by the jokoku appellee without the consent of the
appellee, and cannot be exempted from tort liability for the infringement of
performing rights as a subject entity of the performance.
Although when
producing the karaoke tape, fees were paid to the holder of the copyright, the
fees are for allowing the reproduction (recording) of the copyrighted music and
as such, the karaoke tape can be freely replayed as the reproduction of the
lawfully recorded copyrighted music (Copyright Law before the amendment by Law
No.64 of 1986, attached rules Art.14, Implementation Order of the Copyright
Law, attached rules, Art.3), it cannot be construed that singing by customers
accompanied by karaoke, which is a completely different manner of use of
copyrighted music from the replay of a karaoke tape, should be allowed to be
done freely without the consent of the holder of the copyright, solely because
the singing is accompanied by karaoke which merely has a supplementary role.
The ruling of
the original instance court, which is in line with the above, is justifiable,
and there is no breach of law in the judgment as was argued by the appellant.
The argument of the appellant criticises the original judgment on grounds
different from the above, and cannot be accepted.
The
appellants have failed to produce a brief which contains the grounds for a
jokoku appeal on the part of the judgment of the original instance court
concerning the claim other than the claim on the ground of the infringement of
the performing right by the singing accompanied by karaoke.
Therefore, by
virtue of articles 401,399,399-3, 95,89, and 93 of the Code of Civil Procedure,
except for the opinion of Justice Masami Itoh, the justices unanimously rule as
the main text of the judgment.
The opinion
of Justice Itoh is as follows:
I concur with
the conclusion of the majority opinion which confirmed the judgment of the
original instance court which ruled that the appellants are liable for the tort
of infringing the rights to perform and acknowledged the claim for compensation
of the jokoku appellee based upon tort liability, but cannot concur with the
reasoning which leads to the conclusion on the following grounds.
The majority
opinion, based upon the facts ascertained by the original instance court that
the appellants, in the snack bars which they own, installed karaoke equipment
and tapes, the hostesses and other employees operated the equipment, gave
customers an indexed list of musical pieces, handed them a microphone and
encouraged them to sing, let the customers sing in the presence of other
customers accompanied by the replay of the music recorded in the karaoke tape,
and often made the hostesses sing alone or together with the customer, and thus
enhanced the lively atmosphere of the snack bar with the intention of
collecting customers and increasing profit, ruled that not only in cases where
the hostesses and the others sing, but also in cases where only the customers
sing, the subject entity of the use of the copyrighted music by performance
(singing) is the appellants, who are the entrepreneurs, and because the
performance was for profit making purposes and made in public, the appellants
who failed to obtain the consent of the appellee cannot be exempted from tort
liability for the infringement of the right to perform.
I have no
objection in cases where the hostesses and other employees sing with karaoke
accompaniment, the appellants as entrepreneurs should be regarded as the
subject entity of using the copyrighted music by performance (singing), and in
cases where the hostesses and other employees sing together with customers, the
appellants may also be regarded as the subject entity of using the copyrighted
music by considering the singing of the hostesses and customers as a whole.
However, it is rather unnatural to regard the appellants who are entrepreneurs
as the subject entity of using the copyrighted music when only the customers
sing; as an interpretation, this has gone too far. The majority opinion, as
mentioned above, even in cases where it was only the customers who sang, took
into consideration the solicitation to sing by employees, the choice of the
music within the scope provided by the karaoke tape supplied by the appellants,
along with the operation of the karaoke equipment by the employees, and
concluded that the customers were singing under the control of the appellants,
and on the other hand, found that the appellants accepted the singing by
customers as part of the business strategy and pursued profit, and thus found
the singing by customers to be the equivalent to the singing by the appellants
from the viewpoint of the regulation of the Copyright Law. Even by taking into
account the circumstances such as the solicitation of singing as referred to in
the majority opinion, the customers are not singing on the basis of employment
or work contract with the appellants, or have an obligation against the
appellant to sing; whether to sing or not is entirely left to the choice of the
customers, and the copyrighted music is used by their free will. Therefore, it
cannot be said that the appellants were actively involved in the use of the
copyrighted music, and the singing by customers should be distinguished from
the singing by hostesses and other employees in relation to the use of the
copyrighted music. Treating the singing of customers as an equivalent of the
singing by the appellant is too fictional and unacceptable.
I believe
that regarding karaoke performance, the matter should be approached not from
the aspect of singing with karaoke accompaniment as above, but by focussing on
the karaoke equipment and considering the replay of the karaoke tape by the
karaoke equipment itself as an infringement of the rights to performance. Article
14 of the Attached Rules to the Copyright Law (Law No.48, 1970, but before the
amendment by Law No.64, 1986; the same in the following) provides that
concerning the replay of the performance of the copyrighted music which has
been lawfully recorded, for the time being, Article 30, para.1. subpara.8 of
the previous Copyright Law (Law 1889 Law No.39; the same in the following)
which provided that 'providing for entertainment and broadcasting the works
lawfully copied on the equipment which mechanically reproduces the sound shall
not be deemed as forgery' is applicable except for the broadcasting, or cable
transmission, and profit making business using copyrighted music which are
designated by the cabinet order, and on this basis, Art. 3, para.1 of the Implementation
Order of the Copyright Law lists 'cafes and other businesses providing food and
drinks to customers which advertise as part of the business that the customers
are able to enjoy music, or have a special equipment installed for the
customers to enjoy music' as one of the designated businesses as mentioned
above. The majority opinion seems to understand that the installed karaoke
equipment was not 'special equipment installed for the customers to enjoy
music'.
However,
karaoke equipment is special equipment with which, by replaying the karaoke
tape, customers sing directly to the public accompanied by the recorded music,
and although the installation of karaoke equipment with such a purpose may not
be a place 'which has special equipment enabling the customers to enjoy music'
per se, nevertheless should be regarded as something similar, and therefore,
for the replaying of the karaoke tape by karaoke equipment for business
purposes, it is reasonable to understand that Article 30, para.1. subpara.8 of
the previous Copyright Law by Article 14 of the Attached Rules to he Copyright
Law is not applicable. Since, at the time of the enactment of the Copyright
Law, the popularity of karaoke equipment of today was not foreseen, Art. 3,
para.1 of the Implementation Order of the Copyright Law does not have the
wording with karaoke equipment in mind, but in the light of the intention of
the law concerning Article 14 of the Attached Rules and Art. 3, para.1 of the
Implementation Order of the Copyright Law which allowed the application of the
former Copyright Law only to those businesses in which the provision of music
was not directly linked to the profit, the above interpretation is thought to
be in line with such an intention of the law.
(Translated by Sir Ernest Satow Chair
of Japanese Law, University of London)