August 24,2020
Decision of the Supreme Court, 3rd Petty Bench, July 21, 2020 (Case No. 2018 (Ju) 1412—Presiding Judge TOKURA)
◆ Main text of the case
【Summary of the Judgment】
- The phrase “the work…is made available or presented to the public” under Article 19, Paragraph 1 of the Copyright Act (which provides for the right of attribution) does not require the work to be exploited in a manner as provided for the respective rights in Articles 21 through 27 of the Copyright Act.
- In the case where an image of other person’s photograph is displayed in a trimmed format removing an author’s name on a terminal of a viewer of retweets on Twitter as a result of retweeting a tweet containing such other person’s photographic image, even though the viewer is able to see the original image when he or she clicks on the trimmed photograph image displayed on the terminal, a person who retweeted the tweet containing other person’s photograph image is not deemed to have indicated the author’s name.
- A person who retweeted the tweet containing the image of other person’s photograph on Twitter is considered to correspond to “the sender of infringing information” set forth in Article 4, Paragraph 1 of the Provider Liability Limitation Act, and infringes on said other person’s right to determine the indication of an author’s name “by distribution of infringing information” under Article 4, Paragraph 1 of the Provider Liability Limitation Act.
【Comment】
- With respect to the right to determine the indication of an author’s name, Article 19, Paragraph 1 of the Copyright Act provides that “the author of a work has the right to decide whether to use the author’s name or pseudonym to indicate the name of the author…in connection with the work at the time it is made available or presented to the public, or to decide that the author’s name will not be indicated in connection with that work”. Regarding the summary of Judgment 1, as to whether it is necessary for the act of “making a work available or presenting it to the public” under Article 19, Paragraph 1 of the same Act to be performed by exploiting the work in a manner as provided for the respective rights in Articles 21 through 27 of the Copyright Act, a court decision (the Osaka District Court Decision of June 20, 2013, Hanji No. 2218, p.112 “RocketNews24”) and the decision of the first instance of this case (the Tokyo District Court Decision of September 15, 2016, Hanji No. 2382, p.41) considered it necessary and denied infringement of the right to determine the indication of an author’s name by inline linking which does not constitute an act of automatic public transmission (including an act of making a work available for transmission) set forth in Article 23, Paragraph 1 of the Copyright Act; while on the other hand, the decision of the second instance of this case (the Intellectual Property High Court Decision of April 25, 2018, Hanji No. 2382, p.24) considered it unnecessary and affirmed infringement of the right to determine the indication of an author’s name. The evaluation on these decisions was divided; however, in this case, the Supreme Court found it unnecessary for the first time.
- Regarding summary of Judgment 2, the Supreme Court found and determined, with respect to a tweet posted on Twitter using a photographic image which is an unauthorized copy of a photograph taken by a photographer and posted on his own website with his name displayed, that it is an act of the person who retweeted the tweet that made the photographic image become trimmed due to the system specifications of Twitter and displayed it on timelines, causing the photographer’s name to disappear as a result of retweeting the tweet, and further found and determined that even though a viewer of retweets on Twitter is able to see the original image when he or she clicks on the trimmed photographic image displayed on the terminal, the person who retweeted the tweet containing other person’s photographic image is not deemed to have indicated the author’s name, and affirmed the infringement by the person who retweeted the tweet of the photographer’s right to determine the indication of an author’s name.
- Regarding the summary of Judgment 3, the Supreme Court found and determined that a link to the original image file and a link image display data for specifying a way of displaying the original image, which directly cause infringement of the right to determine the indication of an author’s name, are considered to meet “infringing information” under Article 4, Paragraph 1 of the Provider Liability Limitation Act, and further found and determined that a person who retweeted the tweet, recorded the data in a recording medium on a server, and sent the same to a user’s terminal infringes, as “the sender of infringing information”, the right to determine the indication of an author’s name by “distribution of infringing information” by means of transmission of the data to users.
【Keywords】Article 19, Paragraph 1 of the Copyright Act, the work made available or represented to the public, the right to determine the indication of an author’s name, infringement of the right to determine the indication of an author’s name, photographic image, Twitter, tweets, retweets, trimming, Article 4, Paragraph 1 of the Provider Liability Limitation Act, infringing information, sender of infringing information, distribution of infringing information, disclosure of identification information of the sender
※ 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