JAPAN Trends and Developments Contributed by: Kenji Tosaki, Hiroki Tajima and Chie Komiya, Nagashima Ohno & Tsunematsu
Supreme Court Judgment. Notably, in both cases, the plaintiff did not argue that the information used by the defendants was copyrighted work and did not raise an intellectual property claim. If the plaintiff had added an intellectual property claim, and the court had not found the information to be copyrightable, the plaintiff would have faced difficulty proving a general tort claim because it would have had to prove that the interest asserted in the intellectual property claim differs from that asserted in a general tort claim, in accordance with the ruling by the Supreme Court. Considering these circumstances, it might be appropriate for the plaintiff not to raise an intellectual property claim if it is likely to be unable to prove such claim. Regarding factor (ii), although the amount of invested time, effort, and cost is a basis of establishment of a general tort claim, it is not enough for the courts to affirm such a claim merely because the plaintiff took much time, effort, and cost, since there are some precedents in Japan which presented such ruling. Regarding factor (iii), both cases mentioned the effect of the defendant’s act on the plaintiff (act of free-rid - ing on information provided by the plaintiff), and were judged from the perspective of the necessity to pro - tect the business profits of the infringed party and the content and extent of disadvantage suffered by the infringing party. The Band Score case pointed out that the incentive for creating band scores through tran - scription would disappear, leading to a decline in the production of transcribed sheet music and the dete - rioration of the music publishing industry. The Shogi YouTuber case highlighted that the establishment of business models involving licensing fees for broad - casts, streaming, and game record usage to broad - cast/streaming service providers, as well as paid dis - tribution through these providers, would be hindered. It can be said that what both cases have in common is that if the act of free-riding on information were to be left unchecked, the business structure comprising the production and distribution of information would collapse, resulting in the harmful effect of the said type of information ceasing to exist in circulation in the future. Therefore, this factor is considered to be of great importance in determining whether or not a general tort claim can be established.
Regarding factors (iv) and (v), the above cases described the nature of the infringing party’s actions from the perspective of free competition. For example, in the Shogi YouTuber case , the court determined that the defendant, while aware of the competitive rela - tionship among the plaintiffs, obtained real-time game record information and used the entire game record in a video stream on the actual day of the game to obtain revenue. These two factors are also significant, and in particular, the harmful intention in (v) is a big circumstance that supports the finding that the act was committed outside of the scope of free competi - tion, though it is generally not the requirement of a general tort claim. Conclusion As mentioned earlier, after the Supreme Court Judg - ment, almost all of the lower court precedents denied general tort claims in cases not protected by intel - lectual property law. Under such circumstances, the Band Score case and the Shogi YouTuber case were two cases in which general tort claims were affirmed. One perspective is that the emergence of the two precedents reflects a change in the judgmental ten - dencies of the courts, and it is possible to predict that similar rulings affirming general tort claims will con - tinue to appear in the future. On the other hand, it is also possible to view these rulings as merely affirming general tort claims because the cases presented facts that warranted such a finding, suggesting no change in the court’s overall tendencies. For example, it could be understood that a general tort claim was affirmed in these cases solely because the infringing party’s conduct in both cases was particularly egregious, for example, by jeopardising the infringed party’s busi - ness continuity. Ultimately, it is difficult to make an immediate deter - mination on whether the court judgment trends have changed solely based on the Band Score case and the Shogi YouTuber case . The number of court rulings affirming the establishment of general tort claims fol - lowing the Supreme Court Judgment remains limited, and it will be necessary to continue monitoring future trends in court rulings.
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