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Japan: making a meal out of copyright

09-05-2016

Ryo Maruyama

Article 30 of the Japanese Copyright Law stipulates that the reproduction of copyrighted works for personal use or other equivalent uses within a limited scope is exempt from infringing copyright (reproduction rights).

However, due to rapid development of devices used for reproduction of works including copying books, recording sounds and videotaping, and the increase in illegal transfers of songs, video pictures, etc, using file-sharing sites, the necessity to restrict the scope of the personal use of copyrighted works has been discussed.

In this context, seven writers and comic artists brought a suit against a commercial ‘jisui’ service provider for violating article 30 of the law. Jisui, which means ‘cooking your own meals’ in Japanese, occurs when a user creates digital copies of books, including comic books, by using a scanner.

The plaintiffs argued that carrying out jisui on behalf of individual customers for a charge exceeds the scope of the reproduction for private use stipulated by article 30 of the law. On March 16, 2016, the Second Petty Bench of the Supreme Court rejected the final appeal filed by the jisui service provider against a decision by the second instance court which ordered the service provider to pay ¥700,000 ($6,200) in damages to the plaintiffs. The original decision became final and conclusive.

The Supreme Court ruled for the first time that providing jisui services to individual customers for payment is not within the scope of the personal use of copyrighted works, but infringes reproduction rights of the authors.

In the complaint submitted to the Tokyo District Court (first instance), the plaintiffs argued that jisui involves creating electronic books by removing their spines and scanning the pages. Therefore, they said, if a person carries out jisui, it is within the scope of reproduction for personal use, and does not violate the copyright law.

However, if a jisui service provider scans books on behalf of its individual customers—ie, the person who reproduces the books and the person who uses the reproduced books are different—the jisui carried out by the service provider is not within the scope of personal use and infringes reproduction rights stipulated by the copyright law.

"The Supreme Court ruled for the first time that providing jisui services to individual customers for payment is not within the scope of the personal use of copyrighted works."

In this lawsuit, the jisui service provider insisted that “the reproduction is mainly carried out by individual customers, and the service provider just assists the individual customers with reproducing the books for their personal use”.

However, the Tokyo court judged that the service provider performs the conversion of the pages of books to electronic data, which is the important part in reproducing the books, and therefore the jisui carried out by the service provider is not within the scope of the reproduction for personal use.

Accordingly, the Tokyo court determined that the plaintiffs’ claim is reasonable and ordered that the service provider cease performing reproduction activities and compensate the plaintiffs with damages.

After the service provider brought an intermediate appeal in the IP High Court, it also handed down a similar decision to the first instance court. It ruled that the service provider plays the main role in the reproduction of books, and ordered it to cease performing reproduction activities and pay ¥700,000 to the plaintiffs. Thereafter, the service provider made a final appeal.

We believe this ruling by the Supreme Court makes the scope of the reproduction allowed by the copyright law narrower in Japan, meaning that stricter enforcement of the law will be made in the future.

Ryo Maruyama is a Japanese patent attorney and vice president and chief patent attorney of Kyosei International Patent Office. He can be contacted at: info@kyosei.or.jp

Ryo Maruyama, Kyosei International Patent Office, copyright, Supreme Court,

WIPR

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