【Copyright★★】A case in which the Court found that with respect to a performance of a musical work by a teacher during music lessons at a music school, a business operator which runs the music school is considered as the subject entity who gives the musical performance, however, with respect to a performance of a musical work at the music school by a student, the subject entity who gives the performance of the musical work is not the business operator, but the student.

May 26,2021

The Intellectual Property High Court Decision of March 18, 2021 (Case No. 2020 [Ne] 10022―Presiding Judge KANNO)

【Summary of the Judgment】

1. Regarding musical performances by teachers

(1) Regarding the subject entity who gives a musical performance

When determining the subject entity who gives a performance of a musical work, it is reasonable to examine who it is that performs the musical work in question, while taking into consideration various factors such as the object to be performed, the method of performance, and the details and extent of involvement in giving the musical performance. In this case, the Plaintiffs require teachers to perform musical works in line with the purpose of a lesson agreement with students as a legal obligation under an employment contract or a quasi-mandate agreement between each teacher and the Plaintiffs, and the Plaintiffs allow them to perform the musical works under the control and management of the Plaintiffs by giving them necessary instructions or directions. Therefore, the subject entity of musical performances given by teachers is the Plaintiffs.

(2) Regarding whether or not Article 22 of the Copyright Act is applicable

Any person who concludes a lesson contract with the Plaintiffs can take music lessons at their music schools, and such music lessons have been repeatedly and continuously held. In concluding the lesson contract, no attention is paid to personal characteristics of students, so that any personal relationship does not occur between the Plaintiffs and each of the students from the lesson contract, and thus the students constitute, irrespective of their numbers, “unspecified persons” or the “public” from the perspective of the Plaintiffs. Lessons are to be given to teach performance techniques etc. by performances of musical works given by teachers or by reproducing sound sources to have pieces of music heard by students. Therefore, it is obvious that the performances of the musical works are given with the purpose of having it heard by the students.

(3) Regarding musical performances of two bars or less from a piece of music

Even if two specific bars from a compulsory piece of music are performed, students may recognize it as a performance of the compulsory piece of music, and while perceiving essential features of the whole music piece, they express said features. Therefore, musical performance rights are infringed irrespective of the number of bars performed from the compulsory piece of music.

(4) Regarding exhaustion of the musical performance rights

The musical performance rights are not exhausted by granting a license to reproduce musical works in the form of sheet music or sound recordings.

2. Regarding the subject entity of performances of musical works by students

Students arbitrarily and voluntarily perform musical works solely to improve their own performance skills, and it can be said that the Plaintiffs perform certain preparatory acts and environmental arrangements for the object and method of their performance; however, in light of the nature of the act of the musical performance lesson taken, it is hard to consider a performance by a student as a performance by the Plaintiffs. It should be said that the subject entity of a performance of a musical work by a student is the student.

【Comments】

1. With respect to criteria for determining the subject entity of the performance of musical works during lessons given at music schools, the original court decision (the Tokyo District Court Decision of February 28, 2020 [the “Original Decision”]) found to the effect that “…it is reasonable to determine the subject entity of exploitation based on whether or not the act, which is essential for realizing the performance, is carried out under the management and control of the subject entity of exploitation by taking into consideration various factors such as the method of selection of the works to be exploited, the method and manner of exploitation of the works, the details and extent of involvement in the exploitation of the works, and provision of the facilities and equipment necessary for exploitation of the works”, and that “it should be understood that attribution of profits resulting from exploitation of works…is not precluded from taking into consideration when determining the subject entity of exploitation of the works in question in this case”, based also on the Club Cats-eye Case (the Supreme Court Decision of March 15, 1988) which applies the so-called Karaoke Doctrine, and applied the criteria to this case and determined that it is the business operator of a music school who is the subject entity of performances of musical works performed not only by teachers but also by students.

While on the other hand, regarding the summary of Judgment 1(1), the Court decision was based only on the Rokuraku II Case (the Supreme Court Decision of January 20, 2011) which found, with regard to the criteria for determining the subject entity who gives performances of musical works during lessons at music schools, that “when determining the subject entity who performs reproduction, it is reasonable to examine who it is that reproduces the copyrighted work in question, while taking into consideration various factors such as the object to be reproduced, the method of reproduction, and the details and extent of involvement in performing reproduction”, and indicated the same approach for determining the subject entity as that indicated in the Rokuraku II Case, and determined according to the said approach that the subject entity of performances of musical works by teachers is the business operator of the music schools as in the Original Decision.

2. Regarding the summary of Judgment 1(2), the Court determined that, in the case where the business operator of the music school is found to be the subject entity of performances of musical works by teachers, students are considered to constitute, from the perspective of the business operator, the “pubic” set forth in Article 22 (stipulating the musical performance rights) of the Copyright Act, which is consistent with previous court cases (the Ballroom Dancing Studio Case [the Nagoya District Court Decision of February 7, 2003] affirmed by the Nagoya High Court Decision of March 4, 2004, etc.).

3. Regarding the summary of Judgment 2, on the premise of the approach for determining the subject entity who gives performances of musical works during lessons at music schools as stated in the summary of Judgment 1(1), the Court applied said approach and determined that the subject entity of performances of musical works by students is not the business operator of the music school, but the students, in contrast to the Original Decision which determined that the business operator of the music schools is the subject entity of the performances of musical works even with regard to the performances given by students. In this regard, such determination is considered to be made with an awareness of theories which raise issues concerning generalization and frequent application of the so-called “Karaoke Doctrine” by which, like the independence theory, a person is identified as the subject entity who performs an act of infringement on copyright from a normative perspective, focusing on two factors, namely, management and control over the act, and attribution of profit, even when the person’s physical act is considered to be lawful pursuant to provisions on the limitation of copyright (Tatsuhiro UENO: “Reconsideration of the so-called ‘Karaoke Doctrine’”, “Recent development of the academic disputes on the intellectual property laws and the competition law”: publication of articles in commemoration of the 70^th birthday of professor Dr. Nobuo MONYA, [2006] p.783; Tetsuya OBUCHI “A basic theoretical framework for indirect infringement of copyright (1), (2), and (3)”, Chosakuken Kenkyu Vol.38, p.2, Vol. 39, p.301, Vol. 40, p.229, etc.)

【Keywords】Music schools, musical works, Article 22 of the Copyright Act, right of performance, the subject entity of performances, teachers, students, business operator, the Karaoke Doctrine, the Club Cats-eye Case, the Rokuraku II Case

※ The contents of this article are intended to convey general information only and not to provide any legal advice.

Kei IIDA (Writer)

Attorney at Law & Patent Attorney (Daini Tokyo Bar Association)

Contact information for inquiries: k_iida@nakapat.gr.jp

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