1. Regarding copyrightability of applied art
Although there are no express provisions in the Copyright Act, it is construed that even an industrial product for practical use would be copyrightable as an “artistic” work defined in Article 2, Paragraph 1, Item 1 of the Copyright Act, if the industrial product has an “aesthetic feature worthy of appreciation that can be identified separately from its practical function”; however, if the industrial product does not have such an aesthetic feature, it would not be copyrightable. The reason is that an industrial product for practical use is to be protected under the Design Act, and considering differences between the Design Act and the Copyright Act in requirements for, a period, and conditions, etc. of protection, it is reasonable to understand in light of the entire legal structure of intellectual property laws of Japan that, apart from industrial products for practical use which have an “aesthetic feature worthy of appreciation that can be identified separately from their practical function”, any industrial product for practical use which does not have such an aesthetic feature should be subject solely to the provisions of the Design Act, not the Copyright Act.
2. Regarding copyrightability of the posture keeping tool named “グッドコア [Good core]”
The posture keeping tool “グッドコア” is recognized as an industrial product to be used for practical purpose in general, and its shape etc. is adopted and set for the purpose of fitting it to users with a wide variety of body types and based on its function as an assisting tool to be used when doing exercises or stretches. Such a product cannot be recognized to have an “aesthetic feature worthy of appreciation that can be identified separately from its practical function” and cannot be found to be copyrightable.
【Cited from Exhibit 2 “List of Article” attached to Written Judgment】
1. Regarding copyrightability of applied art, the separability theory (Fashion Show Case – the IP High Court decision of August 28, 2014, Hanji No. 2238, p.91) and the non-limitation theory (TRIPP TRAPP II Case – the IP High Court decision of April 14, 2015, Hanji No. 2267, p.91) prevailed over the stringent requirements theory which was similar to the stage theory and was previously adopted in many lower court cases, and both the separability theory and the non-limitation theory exist in decisions of IP High Court cases. Recently, the separability theory has become prevalent in subsequent cases of lower courts, especially the Tokyo District Court.
Regarding the summary of the Judgment 1, it is considered that the Court adopted the separability theory for the decision of the IP High Court on the question whether “work…falls within the artistic…domain” set forth in the second sentence of Article 2, Paragraph 1, Item 1 of the Copyright Act, not on the question whether “work is expressed in a creative way” within the meaning of the first sentence of Article 2, Paragraph 1, Item 1 of the Copyright Act, on the grounds that subject matter of protection is distinguished due to “differences between the Design Act and the Copyright Act in requirements for, a period, and condition, etc. of protection”.
It is considered that the summary of the Judgment 1 is theoretically closest to the opinion of Professor Toshiya Kaneko (Toshiya Kaneko “Copyright Protection of Applied Arts in Japan: From the Viewpoint of Categorical Approach”, Chosakuken Kenkyu No. 43, pp.92-95), and the opinion of Professor Tetsuya Obuchi (Tetsuya Obuchi “The Dual Structure of Intellectual Property Law in the Protection of Artistic Works and Designs, Especially Applied Arts ”, Hoso Jiho Vol. 69, No. 11, pp.3283-3286).
2. Regarding the summary of the Judgment 2, the Court applied the summary of the Judgment 1 to the posture keeping tool, and then denied copyrightability thereof. The summary of the Judgment 2 is consistent with previous decisions which denied copyrightability rendered in many similar cases (concerning product design or industrial design of useful articles) except for the IP High Court decision rendered on April 14, 2015, mentioned above.
【Keywords】Works of Applied Art, copyrightability, stage theory, stringent requirements theory, separability theory, non-limitation theory, useful articles, product design, industrial design, posture keeping tool, グッドコア[Good core]
※ 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)
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