Japan – TV broadcast through the internet and broadcasters’ copyright protection

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Two recent Supreme Court rulings have highlighted copyright problems deriving from the broadcast of TV programs through the internet.

Japan is a high-tech country and lot of Japanese people, living both on the national territory than overseas, use to watch TV programs through the internet. The internet is nowadays probably the most important source of information and is a medium through which people have access to information. The broadcast of TV through the internet should be encouraged in order to expand the right to information but in a legal framework that protects at the same time the rights of the broadcasters.

Both cases decided by the Supreme Court on January 18 and 20 dealt with the same issue, internet services allowing people living overseas (outside Japan national territory) to view TV programs through a personal computer. From a juridical perspective such services pose problems related to the protection of broadcasters’ copyright and their exclusive right of reproduction and rebroadcasting.

Although the English version of both ruling has not yet been released by the Supreme Court, it is however quite interesting to consider the different approaches in both case of the lower courts and the Supreme Court, the latter giving a broader protection to copyright than the former.

In the first case, the NHK (Japan Broadcasting Corporation, the national public broadcasting organization) and five private TV networks in Tōkyō lodged a claim against a Tōkyō company that markets a service allowing people living overseas to view TV programs in real time through a personal computer. The service offered to the internet users by this company consisted of a TV antenna linked to transmitters that feed broadcasts via the net directly to the netizen’s pc. The lower courts ruled that this system does not constitute an infringement of copyright because the service granted the TV programs transmission only to specific customers having paid for such service. The Supreme Court overruled the lower courts’ rulings. The Court held that the Tōkyō company infringed the broadcasters’ since the service enables the transmission of programs by connecting the antenna to transmitters and the net.

In the second case, the NHK and nine private TV networks based in Tōkyō and Shizuoka prefecture lodged a claim against a company based in Hamamatsu (in Shizuoka prefecture) for leasing digital recording devices to overseas customers. On the basis of this system, the customer leases the company device, which is kept in Japan, and can send a command through the internet to the device to record a TV program. The device records the program and after the recording it sends the program to the customers through the internet. According to the lower courts’ rulings, the customers were simply exercising their right to record TV programs for private use, right allowed by the Copyright Law. The Supreme Court, despite not clearly saying that the company has infringed the broadcasters’ copyright, held that since the company leases recording machines, it should be considered as copying TV programs. Thus the case should be reexamined by the Intellectual Property High Court (a special branch of the Tōkyō High Court).

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