JAPAN Trends and Developments Contributed by: Kenji Tosaki, Hiroki Tajima and Chie Komiya, Nagashima Ohno & Tsunematsu
under the Copyright Act of Japan does not constitute a general tort unless there are “special circumstanc - es”, such as the infringement on any legally protected interest by the said act other than the interest to be enjoyed through the use of works that are subject to regulation under the Copyright Act (“Supreme Court Judgment”). Following the Supreme Court Judgment, almost all of the lower courts have denied general tort claims where the court did not find an infringement of intellectual property rights. However, more recent - ly, there have been some cases where courts have affirmed general tort claims even when a plaintiff was not protected by the Copyright Act. “Band Score” case (Tokyo High Court Decision on 19 June 2024) In this case, the defendant had purchased about 600 band scores (musical scores for band music contain - ing performance information for all parts, including vocals, guitar, keyboard, and drums) made by the plaintiff, produced band scores closely resembling those made by the plaintiff, and then published them on the website for free without the plaintiff’s authorisa - tion. The main issue of this case was whether or not the defendant’s acts constituted a tort under the Civil Code of Japan. The Tokyo High Court firstly stated that band scores do not constitute works protected under the Copyright Act of Japan. The said court then cited the Supreme Court Judgment, ruling that for a tort to be estab - lished, “special circumstances” are needed, such as the infringement on any legally protected interest by the acts other than the interest to be enjoyed through the use of works. The court further pointed out the following facts. First - ly, producing band scores requires the labour-inten - sive process of transcription, which includes listening to performances of band music pieces and transcrib - ing them into scores. Secondly, permitting the act of free-riding on the substantial time, effort, and costs for making transcriptions could lead to a decline in sales of commercially available band scores, preventing band score producers from sufficiently recouping their investment in transcription-based production, which would significantly undermine the incentive to pro - duce such scores, potentially eliminating producers
altogether and thereby cutting off the supply of tran - scribed band scores. Thirdly, permitting free-riding on transcribed works would discourage individuals from investing substantial time, effort, and expense to mas - ter transcription skills, which would cause the number of individuals transcribing band scores to decrease, and also impair the production of all musical scores produced through transcription, potentially resulting in the decline of the music publishing industry itself and hindering the development of musical culture. Based on the above facts, the court concluded that the defendant’s act of producing and selling band scores by imitating others’ band scores infringed the plaintiff’s legally protected interest other than the inter - est to be enjoyed through the use of works, and, thus, the court found the existence of the “special circum - stances” referred to in the Supreme Court Judgment, given that the act was (i) an act of free-riding on the time, effort, and expense invested in transcription, as well as the time, effort, and expense required to acquire highly specialised transcription skills, (ii) com - petitive behaviour in the market for profit that harms fair and free competition, and (iii) an act of business interference that harms another’s business interests by maliciously poaching customers. “Shogi (Japanese Chess) YouTuber” case (Tokyo District Court Decision on 21 May 2025) In this case, the defendant, a YouTuber, watched live the paywalled streaming of professional shogi (Japanese chess) games by a newspaper company, obtained live information related to the games, and streamed his own live videos that reproduced moves on a shogi board almost simultaneously with the pay - walled streaming. Japan Shogi Association and the newspaper company filed a lawsuit to claim damages against the defendant due to the infringement of their business profit by the defendant’s act under a general tort claim. The Tokyo District Court firstly noted that the plaintiffs did not argue that making records of shogi games con - stituted works protected under the Copyright Act. The said court cited the rule established by the Supreme Court Judgment and pointed out that, although busi - ness interests represent a legally protected interest other than the interest to be enjoyed through the use
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