Narrow Copyright Designation in Japanese Music Schools

By Dylan Vogel

In October 2022, the Supreme Court of Japan affirmed a decision by the Intellectual Property High Court (IP Court) that allowed copyright holders to seek royalties from performances put on by instructors at music schools, but not from those held by students.[1] The Japanese Society for Rights of Authors, Composers, and Publishers (JASRAC) sought to allow member artists and those it advocates for to collect royalties from all uses of copyrighted works at music schools.[2] The schools sought to keep costs down by avoiding royalties completely.[3] For both parties, the IP Court had delivered a mixed outcome.[4]

From a policy perspective, it is difficult to reconcile this case’s result.[5] Whether a music school performance is held by either an instructor or a student, the purpose of it is to further the education of the student. Distinguishing between the two classes does not necessarily shield students from royalties.[6] If copyright holders enforced royalties against both distinctions, then institutions would ultimately be liable no matter who puts on a performance and the damages could be passed onto students through enrollment costs.[7]

However, the Supreme Court’s decision is not a matter of policy but of law with how the Copyright Act is structured.[8] Part of the court’s decision hinged upon whether playing at a music school constituted a “performance” as described under Article 22 of the Copyright Act.[9] This restricts “musical performance[s] conducted with the purpose of having [them] heard directly by the other parties.”[10] In the case of music schools, the IP Court indicates differences in purpose between an instructor performing copyrighted material and a student performing it in a classroom setting.[11] Teachers intend for their music to be heard by a student for the purpose of educating.[12] They have discretion in what they play for their students and, though the school does not necessarily mandate these performances, teachers “assume the obligation to provide lessons necessary for performing the obligation that [music school operators] assume in relation to their students under the [employment contracts].”[13]  

JASRAC (building above) sought to allow member artists and those it advocates for to collect royalties from all uses of copyrighted works at music schools. Courtesy The Japan Times.

JASRAC invoked a comparison to precedent by alleging that musical performances by students should receive the same treatment under the Copyright Act as customers singing at a karaoke bar.[14] The IP Court theorizes that karaoke bars permit customers to use intellectual property by the bar for the purpose of accumulating profit.[15] Thus, the bar’s use does not fall within an Article 35 exception, and it must pay royalties to the copyright holder to avoid infringement.[16]

However, the IP Court distinguishes customers at a karaoke bar from music school students by describing the level of control over the environment: The “installation of karaoke facilities by the same bar go far beyond the mere acts of preparation and development of an environment for singing in general . . . singing at a karaoke bar itself cannot be established without such acts.”[17] Through this reasoning, the IP Court allows music schools to evade royalty payments for student performances without overturning its precedent.[18]

From JARSAC’s perspective, the line the IP Court draws does not overcome the myriad similarities between karaoke and music school performances.[19] In both instances, the operator collects revenue through the performance of a copyrighted work in which the operator has full discretion in which performances are allowed and by whom.[20] Furthermore, the IP Court does not elaborate on the dissonance of distinguishing between the two situations based on the level of influence that the operator has over the environment. Both music schools and karaoke bars have the authority to exercise that control at their own discretion.[21]

This dissonance stems in part from the absence of expansive Fair Use rights from Japanese copyright law.[22] A Fair Use Doctrine would have allowed the IP Court and the Supreme Court to distinguish between karaoke bars and music schools based on their purpose rather than the control the operator exerts over the environment the copyrighted material is performed.[23] This would also mean that JARSAC and the authors that it represents would likely not prevail on recovering royalties from instructor performances (provided that music school operators could characterize the copyrighted materials’ use as educational rather than commercial).[24] Whether this outcome is desirable is a matter of policy, but the law’s structure would be simpler to apply without creating exceptions to existing precedents.[25]

Japan has raised its prospects of expanding its exceptions to copyright enforcement, and has provided more clarity when distinguishing a close sets of facts.[26] The narrowing of these exceptions has increased litigation that is not limited to just educational music performances within the country’s own borders.[27] Expanded Fair Use protections would reduce instances of copyright holders weaponizing their claim to suppress public participation, particularly when applied to international defendants.[28] Independent from theses policy considerations though, expanded Fair Use would have allowed for a clear structural framework for music schools cases.

[1] Jiji, Top Court Rules Music Students Not Subject to Copyright Fees, The Japan Times (Oct. 25, 2022), https://www.japantimes.co.jp/news/2022/10/25/national/crime-legal/music-schools-japan-copyright/.

[2] Supreme Court Decision on Lawsuit for Confirmation of Absence of Right to Claim in Musical Instrument Classes, JASRAC (Oct. 24, 2022), https://www.jasrac.or.jp/ejhp/release/2022/1024.html.

[3] Jiji, supra note 1.

[4] See Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[5] Id.

[6] See Kaneko Toshiya, What! Does that Constitute a Copyright Infringement?, Meji (Apr. 6, 2022), https://english-meiji.net/articles/3395/.

[7] Id.

[8] Hōmu-shō, Copyright Act, Art. 48 (May 6, 1970) https://www.japaneselawtranslation.go.jp/en/laws/view/1980/en.

[9] Id. § 22.

[10] Id.

[11] Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, 26, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[12] Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, 10, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[13] Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, 9, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[14] Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, 19, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[15] Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, 21, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[16] Hōmu-shō, Copyright Act, Art. 35 (May 6, 1970) https://www.japaneselawtranslation.go.jp/en/laws/view/1980/en.

[17] Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, 20, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[18] Toshiya, supra note 6.

[19] JASRAC, supra note 2.

[20] Contra Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[21] See generally Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[22] See Steven R. Englund et al., Copyright, in Getting the Deal Through, 79 (2012).

[23] E.g., 17 U.S.C. § 107.

[24] See id.

[25] See generally Chiteki-zaisan kōtō-saiban-sho [Intellectual Property High Ct.] Mar. 18, 2021, 2020 (Ne) 10022, IP Judgments Database, 1, 20, https://www.ip.courts.go.jp/app/files/hanrei_en/022/003022.pdf.

[26] See Yoshimi M. Pelc, Achieving the Copyright Equilibrium: How Fair Use Law Can Protect Japanese Parody and Dojinshi, Sw. J. Int’l L., 397 (2017).

[27] Isaiah Colbert, The Battle Between Anime YouTube and Japan Keeps Escalating, Kotaku (Feb. 4, 2022), https://kotaku.com/youtube-shopro-suede-fair-use-copyright-anime-pokemon-p-1848478203.

[28] Id.