JAPAN Trends and Developments Contributed by: Kenji Tosaki, Hiroki Tajima and Chie Komiya, Nagashima Ohno & Tsunematsu
of works, it is not appropriate to immediately deem the unauthorised use of information acquired by one person in one’s own business operations, which com - pete with that of another person, as constituting a tort under the Civil Code of Japan. The court ruled that the “special circumstances” exist only when such use exceeds the scope of permissible free competition, taking into consideration the necessity of protecting the other person’s business interests, the nature and extent of the disadvantage suffered by the victim due to the use, and the purpose and manner of the use. As for applications of the rule above, the court point - ed out the facts below. Firstly, providing professional shogi games requires costs and efforts such as the payment of contract fees by the sponsoring news - paper company, expenditure on various PR activi - ties, various co-ordination efforts by Japan Shogi Association, and payment of prize money. Secondly, the plaintiffs generate income through the licensing of game records and broadcasting of tournaments, and the defendant also made profits from streaming game records on YouTube, and, therefore, the plain - tiffs and the defendant are in a competitive relation - ship. The defendant’s act could result in the plaintiffs losing future revenue from contract fees, given that the value of shogi records would decrease, making it impossible for the plaintiffs to continue their cur - rent business model. Third, the game record infor - mation used by the defendant was obtained by the plaintiffs’ paywalled streaming, and the defendant’s distribution thereof was an act of free-riding on the costs and efforts invested by the plaintiffs to utilise the game records. As the defendant used the entirety of the game records on the actual day of the game on which the value of information was at its highest, the defendant’s act sig - nificantly interfered with the plaintiff’s business. More - over, the court found that the defendant had malicious intent to the plaintiffs. The defendant demonstrated an attitude of non-compliance with the guidelines for use of the shogi games records created by the plaintiffs by posting that the collection of fees based on the guide - lines constituted extortion and unscrupulous business practices. The defendant also seemed to encourage others to engage in non-compliance with the guide - lines through the posts.
Based on the above facts, the court concluded that, the defendant’s act had infringed the plaintiffs’ legally protected interest other than the interest to be enjoyed through the use of works, and, thus, found the exist - ence of the “special circumstances” referred to in the Supreme Court Judgment, given that the act was (i) an act that competed with and caused significant adverse effects on the plaintiffs’ business activities, which they undertook at considerable expense and effort, (ii) an act of free-riding on the results of the plaintiffs’ substantial expense and effort, and (iii) an extremely malicious act that greatly diminished the value of using the shogi game records by utilising all the records on the same day. This matter is still being disputed at the Tokyo High Court as a result of an appeal. Analysis of the two precedents As mentioned in the introduction, the Supreme Court Judgment ruled that an act of using a work that does not fall within any of the categories of works under the Copyright Act of Japan does not constitute a general tort unless there are “special circumstances”, such as an 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 regu - lation under the Copyright Act. Based on the above two precedents, it can be said that the following were identified as relevant factors for a finding of “special circumstances”: • (i) the nature of the plaintiff’s profit that was infringed by the defendant; • (ii) the time, effort, and cost invested by the plain - tiff; • (iii) the contents and extent of disadvantage suf - fered by the plaintiff; • (iv) the purpose and manner of the defendant’s use; and • (v) the defendant’s harmful intention to the plaintiff. The authors’ analysis of the importance of each factor is as follows. Regarding factor (i), the plaintiff must demonstrate its legally protected interests other than interests pro - tected by intellectual property law, such as the interest of exclusively using goods or works, based on the
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