The Japan Shogi Association cannot cover the costs of holding and operating the tournaments it organizes by preparing large venues and charging admission fees from spectators, as is done in sports competitions. The Association has therefore granted the Appellant and other broadcasting and distribution operators the rights to broadcast and distribute recordings of shogi games in real time. Through this arrangement, the Association is able to provide real-time game information to shogi fans in a physically exclusive manner as the organizer responsible for providing the venue, while collecting compensation from the Appellant and other broadcasting and distribution operators. In this way, the Association covers the costs of organizing and operating the events, generates profits, and thereby contributes to the improvement and development of shogi culture. Furthermore, the fact that the Appellant and other broadcasters and distributors who have obtained the same license are attempting to broadcast and distribute the shogi games in real time to shogi fans for a fee, thereby recovering license fees and generating profits, is also an integral part of this business model.
The Appellee, paying only the fee of an individual viewer, viewed the afore-mentioned broadcast and reproduced on a shogi board the real-time game moves obtained from the broadcast and simultaneously streamed those moves free of charge to shogi fans via YouTube and other platforms, thereby increasing the number of viewers of the Appellee’s videos. On the other hand, the Appellee at the very least intentionally reduced the number of viewers of the Appellant’s broadcast and caused direct damage to the Appellant, as well as hindering the establishment of the business model of the Japan Shogi Association as described above and ultimately jeopardizing the continued existence of shogi tournaments at their current scale.
In addition, the Appellee is in competition not only with the Appellant but also with other video distributors of shogi tournaments. The Appellant incurred significant expenses, while other video distributors complied with the Japan Shogi Association’s regulations and did not stream the game-play information themselves in real time, and instead competed for viewers through other means. On the contrary, the Appellee obtained real-time game information through paying the fee of an individual viewer and used the information for streaming distribution, thereby appealing to viewers and generating revenue, all of which actions are clearly outside the scope of such competition.
Therefore, at the very least the Appellee’s video distribution described above is illegal and constitutes tort, because it goes beyond the scope of free competition and infringes on the Appellant’s business interests. The benefits obtained thereby do not constitute legally protected interests, and therefore it cannot be said that the Appellant’s request to Google, etc. to delete the aforementioned videos distributed by the Appellee infringes upon the Appellee’s “business interests”.
Previously, a number of scattered court cases recognized tort liability for acts of copying or otherwise reproducing information that was non-copyrighted work (Kyoto District Court Decision of June 15, 1989 (Saga Nishiki “Fukuro Obi” case); Tokyo High Court Decision of December 17, 1991 (Wood Grain Decorative Paper case); Tokyo District Court Decision of May 25, 2001 (Tsubasa System case); Intellectual Property High Court Decision of October 6, 2005 (Yomiuri Online case)).
Conversely, in recent years the Supreme Court has ruled that “the use of works that do not fall under the category of works specified in Article 6 of the Copyright Act does not constitute an illegal act, unless there are special circumstances such as the infringement of legally protected interests that are different from the interests protected by the Copyright Act”. The Supreme Court then denied the existence of tort liability with regard to the use of North Korean films that do not fall under the category of works specified in the Article 6 (Supreme Court Decision of December 8, 2011 (North Korean Film case)).
Following that Supreme Court Decision and until recently, the Court’s ruling has often been repeated and cited in court cases related to the existence of tort liability in cases not protected by the Copyright Act, and many of the court decisions denied the existence of tort liability (Osaka District Court Decision of July 5, 2012 (“Ohedo Ukiyoe Gurashi” case); Intellectual Property High Court Decision of September 10, 2013 (“Hikari no Hito” case); Intellectual Property High Court Decision of December 17, 2013 (Chateau Katsunuma Case); Osaka High Court Decision of September 26, 2014 (Display Font case); Osaka District Court Decision of September 29, 2016 (Trailer case); Tokyo District Court Decision of November 16, 2017 (Special Fire-fighting Vehicle case) and upheld by the Intellectual Property High Court Decision of June 20, 2018; Intellectual Property High Court Decision of July 3, 2018 (Silencer case); Tokyo District Court Decision of August 17, 2018 (LoiLoNote School case); Osaka District Court Decision of October 18, 2018 (Garbage Can / Umbrella Stand case); Intellectual Property High Court Decision of December 6, 2018 (SAPIX case); Intellectual Property High Court Decision of September 20, 2019 (Technology for Removing Multiple Nuclides from Radioactive Contaminated Water case); Intellectual Property High Court Decision of September 29, 2021 (“Houchishoujo” case); Tokyo District Court Decision of January 24, 2022 (“Nihon no shougakkin wa kore de ii no ka! [Is Japan’s Scholarship System Okay As It Is?!]” case) and upheld by the Intellectual Property High Court Decision of August 31, 2022; for details, see Tatsuhiro UENO, “The Complementarity of Unfair Competition under Civil Law: The Current States of Discussions on Intellectual Property Law and Tort Law,” (in Japanese) Special Issue of “Patent” No. 29, p.15-).
Under these circumstances, and following the cases of (1) the Osaka High Court Decision of September 24, 2023 (Case No. 3392 (Wa) 2022) (ONESPOON PREMIUM case) and (2) the Tokyo High Court Decision of September 24, 2023 (Music Score case), this judgment affirms the existence of tort liability in cases not protected by intellectual property laws, thus reversing the original judgment that denied such liability. It holds significant implications as one of the recent judicial precedents, after the aforementioned Supreme Court decision.
However, in a subsequent similar case in which the original judgment (Tokyo District Court Decision of February 26, 2024 (Case No. 10025 (Ne) 2024) (Gameplay Recordings on Video Distribution II case)), which partially upheld a video distributor’s claim for damages against the defendant (appellee), was affirmed (Intellectual Property High Court Decision of February 19, 2025 (Case No. 70052 (Wa) 2023)), even though the litigation was in a situation where the appellee has not contested the appellant’s claim that the appellee’s act of reporting copyright infringement constitutes an unfair competitive practice (false statement) as defined in Article 2, Paragraph 1, Item 21 of the Unfair Competition Prevention Act. Therefore, it is not entirely clear to what extent this new trend will become established in future judicial practice.
The aforementioned Supreme Court judgment is understood to illustrate, as an example of “special circumstances” where “the use of a copyrighted work not falling under the categories specified in Article 6 of the Copyright Act constitutes a tort,” cases where “the use infringes legally protected interests distinct from the benefits derived from the use of works regulated by the Act.” Furthermore, in the Supreme Court judgment, the court made a supplementary statement that the use of the work can hardly be considered obstruction of business. Thus, obstruction of business seems to be considered one example of “special circumstances”.
With regard to such “special circumstances” and examples thereof, the following determination was made in the above-mentioned Tokyo District Court Decision of June 29, 2024 (Music Score case). Imitating music scores constitutes free riding on the “time, effort, and expense” invested by others. It involves engaging in competitive acts in the market for profit using means and methods that harm fair and free competition, while simultaneously damaging another’s business interests through business interference, specifically by maliciously poaching customers. This infringes upon legally protected interests distinct from interests of utilizing copyrighted works. Thus, “special circumstances” are recognized. In light of the above judgment, this Tokyo District Court judgment (Tokyo District Court Decision of June 29, 2024 (Music Score case)) is relatively compatible with the above Supreme Court judgment. Although it is a judgment made by the regular division, these criteria can be expected to become established in future judicial practice.
On the other hand, in this judgment, the court held that the appellee’s activities “infringe the business interests of the appellant” in that, similar to the judgment of September 24, 2023, the activities “deprive the appellant of its customers through illegal sales practices that exceed the bounds of free competition.”
These criteria for judgment are compatible with the criteria for the abovementioned court cases (Tokyo High Court Decision of December 17, 1991 (Wood Grain Decorative Paper case): “in a transactional society founded on the principles of fair and free competition, using grossly unfair means to infringe upon another’s business interests deserving of legal protection”; Tokyo District Court Decision of May 25, 2001, (Tsubasa System case): “in a transactional society founded on the principle of fair and free competition, using grossly unfair means to infringe upon another’s business interests deserving of legal protection”) prior to the above Supreme Court Case which recognized tort liability. The specific details and boundaries of these criteria are not clearly defined, and their relationship to the “special circumstances” referred to the aforementioned Supreme Court judgment and its examples is also not necessarily clear. In light of the above ruling, this judgment, even though made by the Intellectual Property Department, is not compatible with the abovementioned Supreme Court ruling, and thus, it remains unclear whether these criteria will become established in future judicial practice.
【Keywords】The Japan Shogi Association; Shogi tournaments; Gameplay recordings; Video distribution; Takedown requests; Business defamation; Article 2, Paragraph 1, Item 21 of the Unfair Competition Prevention Act; Takedown requests for videos; Infringement of business interests; Tort
※ 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 (Please replace ☆ with @.)