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Japan: Streaming and Transfer of Recorded TV Programs Services Abroad Found Illegal

(Feb. 9, 2011) The Supreme Court of Japan decided in two recent cases that two kinds of services that enabled overseas Japanese to watch TV programs broadcast in Japan were illegal, because they infringed on the copyright of broadcasters and TV program producers. The lower court, the Intellectual Property High Court, had taken the side of the service providers in both cases. In each case, the focus was on whether it was the service provider or the client who was the one deemed to have streamed or recorded the content. The copyright law exempts making copies of copyrighted material for private use, such as for viewing at home. The high court determined that the clients are the ones who stream or record the content because they give the operator the instruction to transmit or record the programs. However, the Supreme Court found that the service providers are the ones who manage the streaming or recording of the TV programs.

The Supreme Court's first decision was rendered on January 18, 2011, concerning a streaming service (2009 Ju 653 (Sup. Ct. 3rd Petit Bench, Jan. 18, 2011), Nagano Shoten operates a service that distributes TV programs to customers' computers via the Internet, using an image-forwarding device (base station) connected to a TV antenna. The users buy the base station through Nagano Shoten and own them. The TV antenna was owned by the service provider. (Top Court Rules Forwarding TV Shows via Net Illegal, NIKKEI (Jan. 18, 2011), The Supreme Court stressed that the service provider enabled anyone who bought the equipment and their service to stream the TV programs. The Court decided that Nagano Shoten had infringed TV broadcasters' “right to make [their programs] transmittable.” (Copyright Act, Act No. 48 of 1970 (last amended by Act No. 121 of 2006), art. 2, ix-5, & art. 92-2 [in English], Japanese Law Translation website (run by the Ministry of Justice), (last visited Feb. 7, 2011).)

The second decision was rendered on January 20, 2011(2009 Ju 788 (Sup. Ct. 1st Petit Bench, Jan. 20, 2011), The service provider, Nihon Digital Co., had sold or leased hard-disk video recorders to its clients, who pre-select TV programs via the Internet with their home devices and watch the programs after they have been recorded on the company-controlled parent equipment. (Top Court Backs Broadcasters over Recorded-Video Transfer Service, JAPAN TODAY (Jan. 21, 2011),
.) The Supreme Court stressed that Nihon Digital took the main role in providing the service: it received TV programs and entered the necessary information into recorders to record the programs. Therefore, Nihon Digital is the legal person who copied the TV programs for its customers, thereby infringing the copyright holders' right of reproduction. (Copyright Act, art. 21, supra.)

The Supreme Court remanded both cases to the Intellectual Property High Court to determine the amount of damages to be awarded to the plaintiffs. (JAPAN TODAY, supra.)