[Translation]*
Holding
The judgment in the second instance shall be reversed.
This case shall be remanded to the Intellectual Property High Court.
Grounds
Regarding reasons for petition for acceptance of final appeal to this Court (excluding thosenot considered) by Yasuhiro Umeda and other counsel for appellant X1, and reasons for
petition for acceptance of final appeal to this Court (excluding those not considered) by
Masayuki Matsuda and other counsel for appellant X2, by Hiroshi Okazaki and other counselfor appellant X3, by Tetsuo Maeda and other counsel for appellant X4, by Makoto Ito andother counsel for appellant X5, and by Yukimasa Ozaki and other counsel for appellant X6.
1.

In this case, the appellants, who are broadcasting organizations, assert against theappellee, who provides a service, called “Maneki TV,” using a device having a function
to automatically transmit a broadcast program upon demand by a user (the “Service”),
that the Service infringes the right to make transmittable (Article 99-2 of the CopyrightAct) with regard to each appellant’s broadcasts and the right of public transmission(Article 23, Paragraph 1 of the Copyright Act) with regard to broadcast programs
produced by each appellant, and thereby seek injunctive relief against making thebroadcasts transmittable and against the public transmission of broadcast programs, aswell as damages.

2.

A summary of the facts determined by the court of the second instance, i.e., theIntellectual Property High Court (“IP High Court”), is as follows:(1)

Each of the appellants (other than appellant X4) is a broadcasting organizationthat has the right to make transmittable the broadcasts provided in a list of
broadcasts attached to the IP High Court’s judgment (collectively, the“Broadcasts”). Party A used to be a broadcasting organization and used to havethe right to make transmittable a broadcast provided in said list.
Each of the appellants (other than appellant X4) and Party A produced each of thebroadcast programs provided in the list of broadcast programs attached hereto(collectively, the “Programs”).
Appellant X4 is a broadcasting organization that succeeded the rights andobligations relating to all of Party A’s business other than its group managementbusiness on October 1, 2008 as a result of company split.

(2)

A product, sold by Party B, called LocationFree (“LocationFree”) is used for theService. LocationFree’s main component is a device (“Base Station”) that
includes a built-in tuner for terrestrial analog television (TV) broadcasts and that
performs a function of digitizing received broadcasts and automatically* the translation was supervised by Haruaki Murao, an attorney at law in Tokyotransmitting that data upon demand by users.
A user of LocationFree can, by setting up a Base Station and a terminal device,
which is located with the user (e.g., dedicated monitor), so that they communicate
exclusively with each other (one-to-one) via the Internet, view using the terminal
device the broadcast digitized and transmitted to said terminal device by the Base
Station. Specific procedures are: (i) the user operates the terminal device, which
is located with the user, to request transmission of a certain broadcast; (ii) thatrequest is relayed to the corresponding Base Station via the Internet; (iii) theterrestrial analog broadcast received through the television (TV) antenna iscontinuously inputted to the Base Station and such broadcast is automaticallydigitized by said Base Station upon receipt of the abovementioned request fortransmission; (iv) after that, the digitized data is automatically transmitted to theuser’s terminal device via the Internet; and (v) the user views the received
broadcast by operating the terminal device.
(3)

In order to provide the Service, the appellee installs at its office a Base Station
owned and sent by a user in order to receive the Service from the appellee,
connects the Base Station with a television (TV) antenna via a distribution device
or the like, and connects the Base Station with the Internet upon payment of anadmission fee of 31,500 yen and monthly usage fees of 5,040 yen from the user.
A user of the Service (“User”) can view the broadcast aired in the area where aBase Station is installed by operating a terminal device located with the User that
communicates with its corresponding Base Station.

3.

The appellants assert that the appellee is infringing their right to make transmittable,
claiming that the appellee is enabling Users to view a Broadcast by inputting theBroadcast to a Base Station or by connecting a Base Station to which the Broadcast is
inputted with the Internet, which constitutes making the Broadcast transmittable.
The appellants also assert that the appellee is infringing their right of public
transmission, claiming that the appellee’s transmission of the Programs to a terminal
device owned by a User, who is “public,” is a public transmission of the Programs.

4.

The IP High Court dismissed all of the claims brought by the appellants upon making
the following determinations.
(1)

The act of making a broadcast transmittable is premised on the use of an
automatic public transmission server (Article 2, Paragraph 1, (ix-5) of the
Copyright Act), and the automatic public transmission server must be a device
having a function of transmitting wireless communications or wire
telecommunications, which can be directly received by the “public” (i.e.,unspecified or many people). Each Base Station merely has a function of
one-to-one transmission, i.e., transmitting data to a single corresponding device
that is already set up, and thus cannot be considered an automatic public
transmission server. Hence, making a Broadcast available for the User to viewby inputting the Broadcast to the Base Station or otherwise does not constitutemaking the Broadcast transmittable, and, therefore, infringement of the right tomake transmittable is not established.

(2)

5.

Because each Base Station is not an automatic public transmission server as
described above, transmission of the Programs to a User’s terminal device is not
automatic public transmission, and, therefore, infringement of the right of public
transmission is not established.

However, the abovementioned determinations by the IP High Court cannot be approvedfor the following reasons.
(1)

Infringement of right to make transmittableA.

“To make transmittable” means an act that makes automatic public
transmission possible by a method set forth in Article 2, Paragraph 1, (ix-5)(a) or (b) of the Copyright Act, such as inputting information to an“automatic public transmission server” already connected with atelecommunications line that is provided for use by the public, and“automatic public transmission server” means a device which, whenconnected with a telecommunications line provided for use by the public,
has a function of performing automatic public transmission of information
which is either recorded on an automatic public transmission portion of arecording medium of such device or is inputted into such device (Article 2,Paragraph 1, (ix-5) of the Copyright Act).
While “automatic public transmission” is a form of public transmission(Article 2, Paragraph 1, (ix-4) of the Copyright Act), and “publictransmission” means a transmission intended for direct reception by thepublic from the transmitter’s perspective (Article 2, Paragraph 1, (vii-2) ofthe Copyright Act), the objective and purpose of the Copyright Act inspecifying “to make transmittable” as an act subject to regulation is toregulate a preparatory act that is carried out before “automatic publictransmission” is actually made in the circumstances where, among forms of“public transmission,” the transmission which occurs automatically inresponse to a request from the public (subsequently defined as “automaticpublic transmission”) was already subject to regulation. Taking this intoaccount, it must be considered that a device which, when connected with atelecommunications line provided for use by the public, has a function of
automatically transmitting information inputted into said device in response
to a request from a receiver is an “automatic public transmission server” if
the transmission using said device can be said to be an “automatic publictransmission” despite the device only having the function of transmitting toa single device that has already been set up.

B.

In addition, considering that “automatic public transmission” is premised on
the use of a device with a function of automatically transmitting information
inputted into said device in response to a request from a receiver, it isreasonable to consider that the actor is the person who makes it possible forsaid device to automatically transmit the information in response to arequest from the receiver. When said device is connected with atelecommunications line that is provided for use by the public andinformation is continuously inputted therein, it is reasonable to consider thatthe actor of the transmission is the person inputting information to said
device.

C.

(2)

In this case, each Base Station has a function of, by connection to theInternet, automatically digitizing and transmitting information inputted
therein upon demand by the receivers, and is connected with the Internet,
and information is continuously inputted therein. Because the appellee
connects a Base Station with a television (TV) antenna managed by theappellee via a distribution device or the like so that the Broadcast received
by said television (TV) antenna is continuously inputted to the Base Station,and installs and manages the Base Station at its office, it is reasonable toconclude that the actor of transmission by using the Base Station is theappellee, since the person inputting the Broadcast to the Base Station is theappellee even though the User is the owner of the Base Station. Further,because anyone can use the Service upon execution of a contract with theappellee to use said Service without the relationship with the appellee being
an issue, the User of the Service is thus “public,” as in an unspecified person,from the perspective of the appellee, i.e., the actor of the transmission.
Thus, the transmission using the Base Station is “automatic publictransmission,” and the Base Station is an “automatic public transmissionserver.” Consequently, it must be said that the appellee’s act of inputting
the Broadcast to the Base Station, which is an “automatic publictransmission server” connected with the Internet, constitutes making theBroadcast transmittable.

Infringement of right of public transmission
Because it is obvious that the actor transmitting the data from a television (TV)antenna to the Base Station for the Service is the appellee, and the actor
transmitting the data from the Base Station to a User’s terminal device should beunderstood to also be the appellee as described in (1)C. above, the transmission ofthe Programs from the television (TV) antenna to a User’s terminal device
constitutes public transmission of the Programs.

6.

Accordingly, there are violations of laws that obviously affect the judgment in the IP
High Court’s decisions denying that the Base Station is an automatic public
transmission server merely because the Base Station only has the function oftransmitting the data to a single device that has already been set up and not finding theappellee’s infringement of the right to make transmittable and of the right of public
transmission. The appellants’ claims are thus with merit. The IP High Court’s
judgment must be reversed and this case shall be remanded to the IP High Court forfurther proceedings.

Therefore, the judgment was unanimously rendered in the form of the Holding.
Justice Mutsuo Tahara, Presiding
Justice Kouhei Nasu
Justice Kiyoko Okabe
Justice Takehiko Otani

Appendix
List of Broadcast Programs
1.

X1
Name of Program: Variety Seikatsu Sho Hyakka
Name of Program:

2.

Fukushi Network

X2
Name of Program: Odoru! Sanma Goten!

3.

X3
Name of Program: Hiroshi Sekiguchi’s Tokyo Friend Park II

4.

A
Name of Program: MUSIC FAIR 21

5.

X5
Name of Program: Ikinari! Ogon Densetsu

6.

X6
Name of Program: Hello! Morning[This translation was supervised by Haruaki Murao, an attorney at law in Tokyo]