Copyright

Date

March 18, 2021

Case number

2020 (Ne) 10022

Court

Intellectual Property High
Court, Fourth Division- A case in which the court determined that the actor of musical performance in the caseof an act of musical performance by a teacher at a music school is the operator of themusic school and such act of musical performance constitutes the exercise of a musicalperformance right by the music school operator.
- A case in which the court determined that the actor of musical performance in the caseof an act of musical performance by a student at a music school is the student.
Case type: Confirmation of Nonexistence of Obligation
Result: Partial modification of the prior instance judgment
References: Article 2, paragraph (5) and Article 22 of the Copyright Act
Judgment of the prior instance: Tokyo District Court, 2017 (Wa) 20502 and 25300,
rendered on February 28, 2020
Summary of the Judgment
No. 1 Main text
1. All the appeals pertaining to the principal claims filed by the Appellants shall bedismissed.
2. The judgment in prior instance shall be modified as follows with respect to thealternative claims of the Appellants.
(1) It is hereby declared that, in the relationships between the Appellants and the Appellee,
the Appellee holds no claim pertaining to the use of works (meaning all pieces of musicthat the Appellee manages as of January 14, 2021), which it possesses by accepting thetrust of copyrights transferred for the purpose of collecting royalties for works or theentrustment of such collection from copyright owners, with respect to musicalperformances by students stated in List of Circumstances of Use of Works 1 attached tothis judgment during lessons between a teacher and around 10 or fewer students, which
are provided based on contracts for the teaching of music and techniques for musicalperformance (including singing) that the Appellants have concluded with their students,
respectively.
(2) It is hereby declared that, in the relationships between the Appellants stated in
Attachment C and the Appellee, the Appellee holds no claim pertaining to the use ofworks stated in (1) above with respect to musical performances by students stated in Listof Circumstances of Use of Works 4 attached to this judgment during lessons, which areprovided based on the contracts stated in (1) above that the same Appellants haveiconcluded with their students, respectively.
(3) All the other alternative claims of the Appellants shall be dismissed.
No. 2 Background
1. In this case, the Appellants (corporations or sole proprietors), which operate music
schools for teaching the basics of music and music instrument performance techniques,etc. in classrooms or at students' homes, seek a declaratory judgment against the Appellee,
which is a copyright manager, to the effect that, for all pieces of music that the Appellee(defendant in first instance) manages at the time of the conclusion of oral argument of
this case (Pieces of Music Managed by the Defendant), the Appellee holds neither a claim
for compensation for loss or damage based on infringement of copyrights (musicalperformance rights), nor a claim for the return of unjust enrichment in the amountequivalent to royalties for works against the Appellants at the time of the conclusion oforal argument of this case with respect to musical performances of the Pieces of MusicManaged by the Defendant in the classrooms of the Appellants or the homes of theirstudents during lessons, which are provided based on the contracts for the teaching ofmusic and techniques for musical performance (including singing) that the Appellants
have concluded with their students, respectively (Lesson Contracts). The principal claimsof the Appellants are to seek a declaratory judgment to the effect that in units of lessons
for a prescribed time in which a teacher teaches musical performance techniques, etc. tostudents, neither the Appellants' obligation to compensate loss or damage nor obligation
to return unjust enrichment in relation to the Appellee has been caused to arise due to theprovision of those lessons. The alternative claims of the Appellants are to seek adeclaratory judgment to the effect that in units of individual acts of musical performance
during lessons, neither the Appellants' obligation to compensate loss or damage nor
obligation to return unjust enrichment in relation to the Appellee has been caused to arise
due to those acts of musical performance.
2. The major issues of this case are as follows:(1) [i] Whether the actors of exploitation of musical works during lessons at music schools(actors of musical performances) are teachers or students, who actually give musicalperformances in classrooms, or the Appellants, which engage in business to operate music
schools; [ii] whether a musical performance by a person who is found to be the actor of
the musical performance fulfills the requirement, "with the purpose of having it … heard
directly by the public," as referred to in Article 22 of the Copyright Act and constitutes
an infringement of a musical performance right; and [iii] whether a musical performanceof two or less bars of a piece of music constitutes an infringement of a musicalperformance right (Issues 2 to 4); andii

(2) Whether a musical performance right for a musical work is exhausted and becomesunable to be exercised as a result of granting the authorization of reproduction of themusical work in a music score or sound recording (Issue 5) or whether the Appellee's
exercise of a claim for compensation for loss or damage based on infringement of musicalperformance rights or a claim for the return of unjust enrichment against the Appellants
constitutes an abuse of right (Issue 7)
3. The court of prior instance (1) determined [i] that for both musical performances by
students and those by teachers, the actors thereof are the Appellants, which are music
school operators, [ii] that students and teachers give musical performances "with the
purpose of having them heard" by students in classrooms, who are "the public," and [iii]that even a musical performance of two or less bars of a piece of music falls under
exploitation of a musical work. Then, the court of prior instance (2) rejected both of theallegations of exhaustion of musical performance rights and an abuse of right, etc. anddismissed all the Appellants' claims.
No. 3 Summary of the reasons for the judgment of this court
In this judgment, as summarized below, the court determined that the actor of musicalperformance in the case of an act of musical performance by a teacher at a music schoolis the operator of the music school and such act of musical performance constitutes theexercise of a musical performance right by the music school operator, while also
determining that the actor of musical performance in the case of an act of musicalperformance by a student is the student. In conclusion, the court dismissed all of theappeals pertaining to the principal claims filed in units of lessons for a prescribed time;
and with regard to the alternative claims filed in units of individual acts of musicalperformance, the court declared that the Appellee holds no claim against the Appellants
pertaining to the use by students of the Pieces of Music Managed by the Defendant, anddismissed all the other alternative claims.
1. Regarding the acts of musical performance by teachers(1) Issues 2 to 4
The Appellants require teachers' musical performances in line with the main object of
the Lesson Contracts as performance of their legal obligation based on an employment or
quasi-mandate contract and have teachers give musical performances under their
management and control while giving necessary instruction and supervision. Therefore,
the actors of musical performances by teachers are the Appellants. Anyone can takelessons provided by the Appellants if he/she concludes a lesson contract with the relevant
Appellant. Such music school businesses have been repeatedly and continuously carriedout, and in concluding such lesson contract, no attention is focused on the individual
iii

characteristics of a student. Therefore, no personal connection arises from such contract
between the Appellant and the student. Therefore, from the perspective of Appellants thatare music school operators, all of their students fall under a "non-exclusive group of
persons" and thus fall under "the public," irrespective of the number thereof. During
lessons, musical performance techniques, etc. are taught by having students hear an
assigned piece of music through a musical performance by a teacher or the playback of asound source. Therefore, it is obvious that such musical performance is given with the
purpose of having it heard by the students. Even if specific two bars of an assigned pieceof music are played, that musical performance is recognized as a musical performance of
the assigned piece of music, and it also expresses the characteristics of the whole pieceof music while realizing the essential characteristics thereof. Therefore, such musicalperformance may also constitute an infringement of a musical performance right,
irrespective of the number of bars played.
(2) Issues 5 and 7
The exhaustion of musical performance rights is not found in this case, and theAppellants' allegation of an abuse of right is groundless.
(3) Therefore, the Appellee holds a claim for compensation for loss or damage based on
copyright infringement or claim for the return of unjust enrichment against the Appellants
with respect to the musical performances of the Pieces of Music Managed by the
Defendant by teachers during lessons at music schools (Circumstances of Use 1 to 4).
2. Regarding the acts of musical performance by students(1) Issues 2 and 3
Students participate in lessons for the purpose of receiving the teaching of music
instrument performance techniques, etc. as a performance of the Appellants' obligation
based on the Lesson Contracts that they have concluded with the Appellants. Students
hold the right to receive teaching and have the obligation to pay lesson fees for theteaching, but they do not assume the obligation to give musical performances at a level
higher than a prescribed level or the obligation to improve their own musical performancetechniques, etc. in relation to either their teachers or the Appellants. Students performmusic for themselves solely for the purpose of improving their own musical performancetechniques, etc. and it is left to their voluntary and independent attitude. The Appellantsthat are music school operators can neither legally nor virtually force their students togive musical performances beyond encouraging them to do so voluntarily. It should besaid that the essence of a musical performance by a student at a music school exists inhaving it heard by a teacher and thereby receiving guidance therefrom. The selection of apiece of music and the provision and installation of instruments, facilities, etc. by theiv

Appellants are nothing more than the additional acts of preparation and development ofan environment based on an individual agreement. Even if those acts constitute certain
circumstances to be considered in determining whether teachers are under the
management and control of the Appellants, they neither indicate that students, who are
the Appellants' customers, are under their management and control nor can be consideredas circumstances indicating their direct involvement in musical performances by students
themselves. Consequently, even if it can be said that the Appellants conduct certain actsof preparation and development of an environment with respect to the subject andmethods of musical performances, it must be said that it is difficult to consider musicalperformances by students as those given by the Appellants from the perspective of theessence of the musical performances by students, which are given for the purpose ofreceiving teaching. Therefore, the actors of musical performances by students should beconsidered to be those students.
(2) Therefore, the Appellants assume neither the obligation to compensate loss or damage
based on the infringement of musical performance rights nor the obligation to return
unjust enrichment in relation to the Appellee due to musical performances by students,
without the need to make determination concerning the remaining points (incidentally,
musical performances by students are given through payment of lesson fees by thestudents themselves with the purpose of having them heard by a teacher of a specificmusic school operator based on the Lesson Contracts; therefore, they cannot be
considered as being given "with the purpose of having them … heard directly by the
public," and it is also considered that there is no room for students to be considered toinfringe musical performance rights; in addition, even assuming that the actors of musicalperformances by students at music schools are music school operators, the other party to
the acts of musical performance is a teacher as long as the essence of students' musicalperformances at music schools exists in having them heard by a teacher and receiving
guidance therefrom, and it means that music school operators, who are the actors of such
musical performances, give musical performances with the purpose of having them heard
by the teacher, who should be equated with themselves; therefore, such musicalperformances cannot be considered as those given "with the purpose of having them …
heard directly by the public").

v

Judgment rendered on March 18, 2021
2020 (Ne) 10022, Appeal case of seeking declaratory judgment of non-existence ofclaims pertaining to the use of works at music schools(Court of prior instance: Tokyo District Court, 2017 (Wa) 20502, 25300)
Date of conclusion of oral argument: January 14, 2021
Judgment
Indication of the parties: As stated in the List of Parties attached to this judgment
Main text
1. All the appeals pertaining to the principal claims filed by the Appellants shall bedismissed.
2. The judgment in prior instance shall be modified as follows with respect to thealternative claims of the Appellants.
(1) It is hereby declared that, in the relationships between the Appellants and the Appellee,
the Appellee holds no claim pertaining to the use of works (meaning all pieces of musicthat the Appellee manages as of January 14, 2021), which it possesses by accepting thetrust of copyrights transferred for the purpose of collecting royalties for works or theentrustment of such collection from copyright owners, with respect to musicalperformances by students stated in List of Circumstances of Use of Works 1 attached tothis judgment during lessons between a teacher and around 10 or fewer students, which
are provided based on the contracts for the teaching of music and techniques for musicalperformance (including singing) that the Appellants have concluded with their students,
respectively.
(2) It is hereby declared that, in the relationships between the Appellants stated in
Attachment C and the Appellee, the Appellee holds no claim pertaining to the use ofworks stated in (1) above with respect to musical performances by students stated in Listof Circumstances of Use of Works 4 attached to this judgment during lessons, which areprovided based on the contracts stated in (1) above that the same Appellants haveconcluded with their students, respectively.
(3) All the other alternative claims of the Appellants shall be dismissed.
3. The court costs for the first and second instances shall be divided into two parts, ofwhich, one shall be borne by the Appellee and the rest shall be borne by the Appellants.
Facts and reasonsNo. 1 Object of the claim
As stated in the List of Claims attached to this judgment.
No. 2 Outline of the case, etc.
1

(Hereinafter the abbreviations used herein are the same as those used in the judgmentin prior instance, unless otherwise specified.)
1. Outline of the case(1) In this case, the Appellants (corporations or sole proprietors), which operate music
schools for teaching the basics of music and music instrument performance techniquesand singing techniques (hereinafter referred to as "musical performance techniques, etc.")
in classrooms or at students' homes, seek a declaratory judgment against the Appellee,
which is a copyright manager registered by the Commissioner for Cultural Affairs under
the Copyright Management Business Act (Act No. 131 of 2000), to the effect that, for all
pieces of music that the Appellee (the defendant in first instance) manages at the time of
the conclusion of oral argument of this case (hereinafter referred to as the "Pieces ofMusic Managed by the Defendant"), the Appellee holds neither a claim for compensation
for loss or damage based on infringement of copyrights (musical performance rights), nora claim for the return of unjust enrichment in the amount equivalent to royalties for works
against the Appellants at the time of the conclusion of oral argument of this case withrespect to musical performances or singing (hereinafter simply referred to as "musicalperformances") of the Pieces of Music Managed by the Defendant in the classrooms of
the Appellants or the homes of their students during lessons, which are provided basedon the contracts for the teaching of music and techniques for musical performance(including singing) that the Appellants have concluded with their students, respectively(the "Lesson Contracts").
A. Regarding the claims
In this case, the Appellants only seek a declaratory judgment regarding the existenceor non-existence of the aforementioned claim for compensation for loss or damage orclaim for the return of unjust enrichment, and the Appellants' claim for a declaratory
judgment does not include a partial claim to seek a declaratory judgment regarding thespecific amount of compensation for loss or damage or return of unjust enrichment subject
to the declaration in the case where each of those claims is declared to exist.
The content of the claims is as stated in the List of Claims attached to this judgment
and basically consists of as follows.
The principal claims (2 to 5 in the aforementioned List) are the claims of theAppellants, which are music school operators, against the Appellee, to seek a declaratory
judgment to the effect that in units of lessons for a prescribed time in which a teacher
teaches musical performance techniques, etc. to students (those that are provided bymusic teachers who are employed or entrusted by the Appellants or those that areprovided by the Appellants who are also teachers), neither a claim for compensation for2

loss or damage nor a claim for the return of unjust enrichment has been caused to arise
due to the provision of those lessons. Regarding Lists of Circumstances of Use of Works
1 to 4, which divide the circumstances of use based on whether or not to play back various
kinds of sound recordings thereunder, etc., the claims are further categorized from theperspective of [i] whether the number of students is one or more and [ii] whether thewhole of a piece of music is played.
In addition, the alternative claims (6 to 9 in the aforementioned List) are the claimsof the Appellants, which are music school operators, against the Appellee, to seek adeclaratory judgment to the effect that in units of individual acts of musical performance
during lessons, neither a claim for compensation for loss or damage nor a claim for the
return of unjust enrichment has been caused to arise due to those acts of musicalperformance. The individual acts of musical performance involved in the alternative
claims are divided into [i] acts of musical performance conducted by a student (students)
or a teacher, [ii] acts of playing back a commercially distributed CD or other soundrecording and [iii] acts of playing back a sound source from which the sound of the partfor one instrument is eliminated (a sound recording of a music instrument performance,from which only the sound of the part for an instrument played by a student(s) iseliminated). Furthermore, the acts mentioned in [i] above are further categorized from theperspective of whether the number of students is one or more as well as the number ofbars played.
B. Regarding the statement of claim, etc.
The circumstances of provision of lessons pertaining to the principal claims or theindividual acts of musical performance pertaining to the alternative claims, which aredisputed in terms of whether these circumstances or acts constitute a cause of occurrenceof a claim for compensation for loss or damage or a claim for the return of unjust
enrichment, are limited to those stated in Lists of Circumstances of Use of Works 1 to 4
attached to this judgment (the circumstances of provision of lessons or the acts of musicalperformance stated in the lists are further subdivided into multiple circumstances ofprovision of lessons or acts of musical performance; however, for those subdivided
circumstances or acts, all of them are deemed to have been conducted), and thecircumstances and acts in the scope thus limited are the facts not disputed between theparties. As the only ground for the occurrence of the aforementioned claims, the Appellee
alleges that the Appellants exercised musical performance rights as the actors of musicalperformances.
All the Appellants used the relevant works in the circumstances of use stated in Listof Circumstances of Use of Works 1 attached to this judgment (Circumstances of Use 1).
3

The Appellants stated in Attachment A (the Appellants in Attachment A) used the relevant
works in the circumstances of use stated in List of Circumstances of Use of Works 2
attached to the same (Circumstances of Use 2). The Appellants stated in Attachment B(the Appellants in Attachment B) used the relevant works in the circumstances of use
stated in List of Circumstances of Use of Works 3 attached to the same (Circumstancesof Use 3). The Appellants stated in Attachment C (the Appellants in Attachment C) used
the relevant works in the circumstances of use stated in List of Circumstances of Use ofWorks 4 (Circumstances of Use 4).
(2) The judgment in prior instance first found that the Appellants in Attachment C, which
operate non-corporate schools, also have an interest in seeking a declaratory judgment,
and then determined as follows in relation to all the Appellants: [i] the Appellants, which
are music school operators, are the users of the Pieces of Music Managed by the
Defendant, which are musical works; [ii] students in a classroom are "the public"; [iii]each of the teachers gives a musical performance "with the purpose of having it … heard
directly by" students, who are "the public" as referred to in Article 22 of the CopyrightAct, and each of the students does so "with the purpose of having it … heard directly by"other students, who are "the public," or by him/herself; [iv] even a musical performanceof two or less bars also falls under the exploitation of a musical work. [v] The judgmentin prior instance then rejected all the Appellants' allegations of exhaustion of musicalperformance rights, grounds for denying substantial illegality, and an abuse of right, andfound the existence of both the Appellee's claim for compensation for loss or damage
based on copyright infringement and claim for the return of unjust enrichment against theAppellants and dismissed all the Appellants' claims.
Dissatisfied with the judgment in prior instance, the Appellants filed this appeal.
2. Basic facts, etc.
The basic facts, etc. are as described in in No. 2, 2.(3) ("Classification of the Plaintiffs,
etc.") and No. 2, 3. ("Basic facts") in the "Facts and reasons" section of the judgment inprior instance and therefore cited herein, except for making the following corrections.
(1) The phrase "List of Plaintiff Group 4 attached to this judgment" in lines 1 to 2 on page
5 is altered to "List of Appellant Group 4 attached to this judgment."(2) The phrase "management of singing schools" in lines 15 to 16 on page 6 is altered to"management of copyrights, etc. pertaining to the exploitation of musical works at singing
schools."(3) The phase "(including the Pieces of Music Managed by the Defendant; the same
applies hereinafter)" is added following "assigned piece of music" in line 21 on page 7.
(4) The word "elementary school children" inline 12 on page 8 is altered to "junior high4

school students."
3. Issues
Regarding the "issues," the court agrees with and cites herein the statements in No. 2,
4. ("Issues") of the judgment in prior instance.
(omitted)
No. 3 Judgment of this court
1. Issue 1 (whether the Appellants in Attachment C have an interest in seeking adeclaratory judgment)This court also finds that the Appellants in Attachment C have an interest in seeking
a declaratory judgment with regard to their claims in this case. Regarding reasons therefor,the court agrees with and cites herein the statements in No. 4 ("Judgment of this court"),
1. of the judgment in prior instance.
2. Issue 2 (whether musical performances at music schools are given to "the public") andIssue 3 (whether musical performances at music schools are given "with the purpose of
having them heard")(1) Introduction
A. Regarding musical performance rights(A) Article 22 of the Copyright Act defines a musical performance right by providing that"the author of a work has the exclusive right to give … musical performance of the workwith the purpose of having it … heard directly by the public …." The Copyright Act has
no provision defining "musical performance" itself, and it is considered that the content
of a "musical performance" is left to an ordinary meaning stated in a dictionary. Therefore,
it is natural to consider that the term "musical performance" means "playing music."
Article 2, paragraph (1), item (xvi) of the Copyright Act contains the phrase "musicalperformance (a musical performance includes singing; the same applies hereinafter)" inthe definition of "giving a stage performance." Therefore, the "musical performance"
referred to in Article 22 of the same Act includes singing. In addition, Article 2, paragraph(7) of the Copyright Act provides that "In this Act, "stage performance," "musicalperformance," and "recitation" include the playback of sound or visual recordings of astage performance, musical performance, or recitation of a work (except when thisconstitutes a transmission to the public or on-screen presentation), and the communicationof a stage performance, musical performance, or recitation of a work by means oftelecommunications facilities (except when this constitutes a transmission to the public)."
Therefore, musical performance includes the playback of sound recordings and5communication by means of telecommunications facilities (except when this constitutes
a transmission to the public).
(B) Although the Copyright Act has no provision defining "the public" that are thelistening audience of an act of musical performance, it is obvious that at least "nonexclusive groups of persons" are included in "the public." Article 2, paragraph (5) of thesame Act provides that "As used in this Act, "the public" includes exclusive groups madeup of many persons." Therefore, "the public" referred to in Article 22 of the same Actmeans groups of persons consisting of those other than "exclusive groups made up of afew persons" (non-exclusive groups of persons or groups of many persons).
(C) As Article 22 of the Copyright Act defines musical performance as one that is given
with the purpose of having it heard "directly," it is obvious that an act of musicalperformance refers to such act conducted with the purpose of having it heard "directly."
Therefore, the Copyright Act requires that, in giving a musical performance, a person who
gives the musical performance has the purpose of giving it to the other parties who are in
front of him/her (including communication by means of telecommunications facilities).
B. Legislative history of Article 22 of the Copyright Act, etc.
This court also finds as follows: the idea that copyright generally does not extend tointangible reproductions of works in classes at schools or other educational institutions
was not adopted in the process of establishing Article 22 of the Copyright Act at the timeof the whole amendment of the same Act; in addition, music education provided by music
school operators for the purpose of profit is considered as not falling under "social
education"; therefore, neither intangible reproductions of works in classes at schools orother educational institutions nor social education-related matters to be considered at thattime immediately affects the interpretation of Article 22 of the Copyright Act after thewhole amendment of the same Act. Regarding reasons therefor, the court agrees with andcites herein the statements in No. 4, 2.(1)A. to C. of the judgment in prior instance.
C. Regarding standards for determining an actor of exploitation of a work
According to No. 2, 3. (after the correction) of the judgment in prior instance citedherein, in music school businesses operated by the Appellants, teachers who haveconcluded an employment or quasi-mandate contract with the Appellants teach musicalperformance techniques, etc. to students who have concluded the Lesson Contracts with
the Appellants in classrooms set up by the Appellants, and in the process of such teaching,a teacher or student necessarily gives a musical performance of an assigned piece of music(in the case of Circumstances of Use 2, a commercially distributed CD, etc. is also played
back; in the case of Circumstances of Use 3, a sound source from which the sound of thepart for one instrument is eliminated is also played back).
6

In this manner, musical performances by a teacher or student during lessons at theAppellants' music schools are given in the course of and as part of implementation ofmusic school businesses for the purpose of profit. However, in light of the aforementioned
content and nature, etc. of music school businesses, the actors of musical performances
at music schools should be comprehensively determined not only through physical andnatural observation of the acts of musical performance at individual schools but also
through observation from social and economic aspects in light of the actual conditions ofmusic school businesses.
From such perspective, when identifying an actor of musical performance at a music
school, it is reasonable to determine who it is that gives a musical performance of a
relevant musical work in consideration of various factors such as the object and methodof the musical performance and the details and extent, etc. of involvement in the musicalperformance (see the judgment of the First Petty Bench of the Supreme Court, 2009 (Ju)788, rendered on January 20, 2011, Minshu Vol. 65, No. 1, at 399 [Supreme Court
judgment on the Rokuraku II case]).
D. Regarding the phrase "with the purpose of having it … heard directly by the public"(A) Regarding the phrase "directly by the public"
As mentioned in A.(B) above, Article 22 of the Copyright Act limits musicalperformances that constitute exercise of a musical performance right to those given withthe purpose of having them heard by "non-exclusive groups of persons or many persons,"
and provides that a musical performance given with the purpose of having it heard by"exclusive groups made up of a few persons" does not constitute exercise of a musicalperformance right. In that provision, the word "exclusive" is considered as meaning thata personal connection exists between an actor who exercises a music performance rightand the other parties the actor intends to have the music performance heard by, in light ofthe purport of the same Article that intends to set the scope to which copyright extends toa purposeful area by adjusting protection of copyright owners and convenience for theusers of works.
In addition, as mentioned in A.(C) above, Article 22 of the Copyright Act limits
musical performances that constitute exercise of a musical performance right to the actsof musical performance conducted with the purpose of having it heard "directly" by theother parties, and it requires that a performer gives a musical performance with the
purpose of having it heard by the other parties in front of him/her.
Furthermore, where a person him/herself is an actor of musical performance, he/she
can neither fall under a non-exclusive group of persons nor many persons in relation to
him/herself, who is the actor of the musical performance. Therefore, "the public" referred7

to in Article 22 of the Copyright Act can be considered as referring to a person other thanan actor of musical performance even in terms of its context.
(B) Regarding the phrase "with the purpose of having it heard"
Article 22 of the Copyright Act provides "being given 'with the purpose of having it
heard'" as a requirement. It is reasonable to consider that this phrase was included in theprovisions of the same Article in consideration of the following: even if a musicalperformance is, by chance, heard by "the public" though it is not supposed to be heard by"the public" (for example, where a person gives a musical performance in his/her homebathroom and the musical performance is heard, by chance, by a passerby who is passing
by his/her home), the music performance should not be considered as constituting
exercise of a musical performance right; and to the contrary, even if a musicalperformance is, by chance, not heard by "the public" though it is supposed to be heard by"the public" (for example, where a person gives a musical performance on the main street
in downtown and, by chance, nobody passes by him/her), the musical performance should
not be excluded from exercise of a musical performance right. Therefore, it is reasonable
to consider that the phrase "with the purpose of having it heard" refers to the case wherea performer is recognized as having the purpose and intention of having the musicalperformance heard by "the public" in light of the external and objective circumstances ofthe musical performance and does not require fulfillment of any other requirement beyondthat.
(C) Regarding this caseAccording to (A) and (B) above, it is considered that a musical performance
constitutes exercise of a musical performance right in the case where a performer gives amusical performance [i] to persons in front of him/her who have no personal humanconnection with him/her or to many persons in front of him/her who have personalconnection with him/her, [ii] in the situation where he/she is recognized as having the
purpose and intention of having the musical performance heard by the person(s)mentioned in [i] above in light of the external and objective circumstances of the musicalperformance.
As in Circumstances of Use 1 to 4, for the Appellants' music schools, musicalperformances were given in classrooms, which persons other than a teacher, students andtheir custodians were not permitted to enter, or at students' homes. Therefore, persons
who were assumed to be within the scope of the other parties by which a musicalperformance was heard were only the teacher and students who were in the relevant room
when a specific act of musical performance was conducted. That is, in this case, it isnecessary to discuss whether a teacher or students fall under "the public" at the time when8

an act of musical performance was conducted in a certain classroom.
E. On the premise of the aforementioned basic idea, whether an act of musicalperformance by a teacher and that by a student falls under a musical performance thatwas given "with the purpose of having it … heard directly by the public," respectively, isexamined below.
(2) Regarding musical performance by a teacher
A. Regarding the essence of an act of musical performance by a teacher
As mentioned in No. 2, 3.(1)A. of the judgment in prior instance cited herein, theAppellants provide lessons for teaching music and musical performance techniques, etc.
to students who have concluded the Lesson Contracts, which are contracts on the teachingof music and contracts on the teaching of music instrument performance techniques, etc.,
by using teachers, with whom the Appellants have concluded an employment or quasimandate contract, for the purpose of teaching music and musical performance techniques,
etc.
Based on the above, it is reasonable to consider that the essence of an act of musicalperformance by a teacher at a music school is to have the musical performance heard by
students, as performance of the obligation that the teacher assumes based on an
employment or quasi-mandate contract in relation to the relevant music school operator
and as performance of the obligation that the music school operator assumes based on the
Lesson Contracts in relation to students.
B. Regarding the circumstances of musical performance
At the Appellants' music schools (excluding those operated by the Appellants in
Attachment C), lessons are provided in classrooms set up by the Appellants, as stated in
List of Circumstances of Use of Works 1 attached to this judgment (Circumstances of Use
1). A teacher presents challenges by playing the whole or part of an assigned piece ofmusic, plays an accompaniment for a student's musical performance, and sometimes plays
a relevant part of the piece of music as an example to present challenges and give cautions
in a student's musical performance. In addition, at the music schools operated by theAppellants in Attachment A, as stated in List of Circumstances of Use of Works 2 attachedto this judgment (Circumstances of Use 2), lessons are also provided in classrooms set upby the same Appellants, and in those lessons, in addition to musical performances by ateacher in the same manner as Circumstances of Use 1, a teacher sometimes plays backone or several bars or the whole of a piece of music recorded on a commerciallydistributed CD or other sound recording by changing the pitch, tempo, and other elements
thereof as needed according to the progress of a lesson and the students' proficiency andunderstanding, in lieu of playing an accompaniment by him/herself. At the music schools
9operated by the Appellants in Attachment B, lessons are also provided in classrooms set
up by the same Appellants as stated in List of Circumstances of Use of Works 3 attachedto this judgment (Circumstances of Use 3), and in those lessons, in addition to musicalperformances by a teacher in the same manner as Circumstances of Use 1, a teacher
sometimes plays back a sound recording in the same manner as in Circumstances of Use
2, except for the point that a sound recording thus played back is from a sound sourcefrom which the sound of the part for one instrument is eliminated, in lieu of playing anaccompaniment by him/herself. At the music schools operated by the Appellants in
Attachment C, lessons are provided at students' homes as stated in List of Circumstancesof Use of Works 4 attached to this judgment (Circumstances of Use 4).
C. Regarding the actors of musical performances(A) It is obvious that the actors of musical performances given by some of the Appellants
who are sole proprietors operating music schools and also serve as teachers and by theAppellants in Attachment C that operate non-corporate schools as teachers by themselves
are the relevant Appellants that are operators of those music schools.
Based on that, musical performances that teachers who are not music school operators
give at the relevant music schools are examined below.
(B) As mentioned in A. above, the Appellants assume the obligation to teach musicalperformance techniques, etc. based on the Lesson Contracts that they have concluded
with their students. For the purpose of performing that obligation, the Appellants conclude
an employment or quasi-mandate contract with teachers, and teachers provide lessons tostudents on behalf of the Appellants as performance of their obligation based on that
employment or quasi-mandate contract. As mentioned in B. above, musical performancesby a teacher (including playback of sound recordings) are the essential constituent
element of such lessons, and it is hardly possible that the Appellants that are music school
operators do not know the fact that teachers give musical performances at music schools.
Teachers give guidance in such lessons as a natural method of providing music education,and this can be considered as conforming to the main object of the Lesson Contracts. In
addition, it is presumptively recognized that from business operation necessity, theAppellants that are music school operators are managing the qualification, ability, etc. ofteachers with whom they have concluded a quasi-mandate contract, not to mention
teachers with whom they have concluded an employment contract, and are instructing
and supervising such teachers so that the teachers provide students with guidance in linewith the Appellants' business philosophy and guidance policy. In terms of the nature ofthis case that requires a determination based only on the facts common to all of theAppellants, no evidence against this has been submitted. Furthermore, it is presumptively
10recognized that the music schools at which teachers give musical performances were set
up by the Appellants, that sound facilities necessary for musical performances, soundrecording players, and other facilities are installed at the expense of the Appellants, andthat the Appellants possess and manage those facilities. In the same manner as above, noevidence against this has been submitted.
For the reasons described above, the Appellants can be considered as requiring
teachers' musical performances in line with the main object of the Lesson Contracts asperformance of their legal obligation based on an employment or quasi-mandate contractand having teachers give musical performances under their management and control
while giving necessary instruction and supervision. Therefore, the actors of musicalperformances by teachers should be considered to be the Appellants from a normative
perspective.
(C) In contrast, as mentioned in No. 2, 5.(1)A.(A), the Appellants allege as follows:
whether a teacher gives a musical performance (including playback of a sound recording)during a lesson, as well as the content and extent of a musical performance, are left to thediscretion of the teacher; therefore, the Appellants neither manage nor control musicalperformances by teachers; in addition, as performances of pieces of music by teachers atmusic schools are incomplete or imperfect and also differ every time, music school
operators can neither manage nor control such musical performances.
However, teachers teach their students musical performance techniques, etc. based onan employment or quasi-mandate contract that they have concluded with the Appellants
as performance of the obligation under such contract. Although teachers have options forthe method of performing their obligation, they do not have the freedom not to performthe obligation. Even though teachers have a certain level of discretion in performing their
obligation, the fact remains that they assume the obligation to provide lessons necessary
for performing the obligation that the Appellants assume in relation to their students under
the Lesson Contracts. Therefore, the fact that teachers have a discretion over the progressof a lesson does not affect the aforementioned determination that the actors of musicalperformances by teachers are the Appellants.
Moreover, teachers give musical performances differently every time in an
incomplete or imperfect form not because of the inadequacy of their techniques but forthe purpose of teaching their students musical performance techniques, etc. Teachers justact in a suitable manner for performing their obligation under an employment or quasimandate contract that they have concluded with the Appellants. Therefore, the degree ofcompletion, degree of perfection or reproducibility of the content of their musicalperformances only represent what method of musical performance teachers used as a11

specific method of performing their obligation based on an employment or quasi-mandate
contract that they concluded with the Appellants, and none of them affects theaforementioned determination that the actors of musical performances by teachers are theAppellants.
All the other allegations of the Appellants concerning the actors of musicalperformances pertaining to their teachers' musical performances are based on a different
premise or are groundless. Therefore, those allegations cannot affect the aforementioned
determination.
D. Regarding the phrase "with the purpose of having it … heard directly by the public"(A) As mentioned in (1)D.(A) above, whether a musical performance constitutes exercise
of a musical performance right is determined based on whether a personal connection
exists between a performer and the other parties by whom the musical performance isheard or the number of such other parties. In terms of the purport of Article 22 of the
Copyright Act that intends to set the scope to which copyright extends as a purposefularea by adjusting protection of copyright owners and convenience for the users of works,a person who gives a musical performance is nothing less than a person who is in aposition that is liable for the exercise of a musical performance right, that is, the actor of
the musical performance. Based on this, as mentioned in C.(B) above, the actors ofmusical performances by teachers at music schools are the Appellants, which are music
school operators. The parties agree that a teacher does not fall under "the public" inrelation to the act of musical performance by him/herself, and it is obvious that a teacher
gives a musical performance with the purpose of having it heard by his/her students.
Therefore, whether the act of musical performance by a teacher, who is a person who
actually gives that musical performance, can be considered as a musical performance
given with the purpose of having it heard directly by "the public" should be determinedbased on whether students, who are the customers of a music school operator, which isconsidered to be the actor of the musical performance from a normative perspective, canbe considered as not falling under "exclusive groups made up of a few persons" from theperspective of the music school operator.
(B) We examine the case on this point. According to No. 2, 3.(1)A. of the judgment inprior instance cited herein, anyone can take lessons of the Appellants if he/she applies forthe lessons with the relevant Appellant and concludes a lesson contract therewith. Suchmusic school businesses have been repeatedly and continuously carried out, and inconcluding such lesson contract, no attention is focused on individual characteristics of a
student. Therefore, when any of the Appellants and its student conclude the Lesson
Contract, there is no personal connection between that Appellant and the student, and the12Appellant, as a music school operator, and the student are connected only through thatlesson contract as far as lessons at the music school are concerned. Based on this, nopersonal connection arises from such contract between the Appellant and the student, and
it is reasonable to consider that such student continues to have the nature of a person
belonging to a non-exclusive group of persons in relation to the Appellant that is a music
school operator.
Therefore, it should be said that, from the perspective of the Appellants that are music
school operators, all of their students fall under a "non-exclusive group of persons" andthus fall under "the public," irrespective of the number thereof. Even if a music school
operator also serves as a teacher, or in the case of a non-corporate music school, thecircumstances of conclusion of a lesson contract does not differ from those mentioned
above as long as the relevant music school is operated as a business. Therefore, students
should also be considered as falling under a "non-exclusive group of persons."
In contrast, as mentioned in No. 2, 5.(1)B.(A) to (E) above, the Appellants allege asfollows: [i] whether students fall under an "exclusive group of persons" should bedetermined also in consideration of the circumstances after the conclusion of lesson
contracts, and it should be found based on whether a personal connection has been formed
after the Appellants concluded the Lesson Contracts with their students and the students
started taking the lesson; [ii] all musical performances by teachers and playback of soundrecordings at music schools are characteristic musical performances, and persons whohear musical performances during a lesson are only those who are in a classroom where
the lesson is actually provided; therefore, whether a musical performance is given to "thepublic" should be determined based on the number of persons in a relevant classroom;[iii] there is no listening audience (the public) other than a person who gives a musicalperformance in the place of lesson; therefore, such musical performance does not fallunder a musical performance given to the public; [iv] lessons at music schools areprovided in preparation for having students give musical performances at a recital, etc. tohave them heard by other persons; therefore, no royalty for works arises with respect tomusical performances during lessons.
However, regarding [i] above, the connection between the Appellants in the positionof music school operators and their students does not go beyond a relationship between
the parties based on the Lesson Contracts, which are contracts for value that were formed
while setting a non-exclusive group of persons as the other parties. That nature neverchanges as long as a teacher and students have contact in lessons at a music school, andthis point remains the same even if a music school operator also holds a position as ateacher. Needless to say, it may well be that a teacher forms a trusted personal relationship13

with a student and develops a personal connection, such as teaching the student outside
the classroom apart from guidance at a music school. However, even if a musicalperformance is given in such process, it should not be considered as a musicalperformance at a music school, which is subject to the proceedings in this case, and it
thus does not fall under the subject of a judgment of this court. Therefore, the Appellants'
allegation mentioned in [i] above is not acceptable.
Moreover, even if the number of students is one, that student falls under "the public"
as a non-exclusive group of persons from the perspective of a relevant music school
operator. Therefore, the Appellants' allegation mentioned in [ii] above cannot affect theconclusion at all. In addition, as indicated above, "the public," specifically, students, exist
with respect to musical performances by a teacher. Therefore, the allegation mentioned
in [iii] above is also not acceptable. Then, as it is obvious that musical performances byteachers as the performance of the Lesson Contracts and musical performances by
students at a recital, etc. completely differ in the nature, the allegation mentioned in [iv]above is also not acceptable.
(C) Next, when examining an act of giving a musical performance "with the purpose of
having it heard," as stated in Circumstances of Use 1 to 4, the circumstances of musicalperformances at the Appellants' music schools are as follows: [i] on such occasions as
when a student plays an assigned piece of music for the first time, a teacher presents
challenges by playing the assigned piece of music ahead of the student's performance; [ii]after hearing the musical performance by the teacher, the student plays the assigned pieceof music by several bars each in front of the teacher; [iii] after hearing the student's
musical performance, the teacher orally explains challenges to the student and gives
cautions in giving a musical performance and also plays the relevant parts as an example
as needed; [iv] after listening to the teacher's cautions and hearing his/her musicalperformance, the student plays those parts again; after repeating the aforementioned steps,[v] finally, the student plays the parts of the assigned piece of music which he/she haspracticed or the whole of the assigned piece of music (the teacher sometimes plays anaccompaniment for the student's musical performance). In the case of Circumstances of
Use 2, a commercially distributed CD, etc. is used in lieu of an accompaniment by ateacher, while in the case of Circumstances of Use 3, a sound source from which the soundof the part for one instrument is eliminated is used in lieu of the same.
In such manner, during lessons at the Appellants' music schools, musical performancetechniques, etc. are taught through repetition of the step of having a student hear an
assigned piece of music played by a teacher or the playback of a sound source and thestep in which the student who has heard such musical performance plays the assigned
14piece of music for the purpose of having it heard by the teacher. Therefore, it is obviousthat musical performances by a teacher or the playback of a sound source are given withthe purpose of having them heard by a student, who is the public.
In contrast, as mentioned in No. 2, 5.(1)C.(A) and (C) above, the Appellants allege asfollows: [i] if the requirement "with the purpose of having it heard" is substantiallyconstrued, a musical performance given "with the purpose of having it heard" refers to a"musical performance given with the purpose of giving a sensual impression to a listener"
or a "musical performance given with the purpose of causing a listener to enjoy the valueof music as a work"; even if this is not the case, in construing Article 22 of the CopyrightAct, whether a musical performance constitutes exercise of a musical performance rightshould be considered from the perspective of whether it can be substantially considered
as an exploitation to which a right should be extended, while also referring to theprovisions of Article 30-4 of the same Act that specifies the "case in which it is not a
person's purpose to personally enjoy or cause another person to enjoy the thoughts or
sentiments expressed in that work" as a limitation on copyright (however, the same Article
is not alleged as a defense); [ii] musical performances by a teacher at a music school differ
from his/her authentic musical performances, and sound recordings are played back while
always adjusting sounds and rhythms; therefore, such musical performances do not fallunder musical performances with the purpose of causing listeners to enjoy the value asmusical works.
However, as determined in (1)D.(B) above, it is reasonable to consider that the phrase"with the purpose of having it heard" refers to the case where a performer is recognized
as having had the purpose and intention of having his/her musical performance heard by"the public" in light of the external and objective circumstances of the musicalperformance and does not require fulfillment of any other requirement beyond that. In
addition, even keeping in mind Article 30-4 of the Copyright Act, which permits
imposition of a limitation on copyright in the case where it is not "a person's purpose topersonally enjoy or cause another person to enjoy the thoughts or sentiments expressedin that work," the purpose of musical performances at a music school is to acquire musicalperformance techniques, etc., and acquisition of musical performance techniques, etc.
cannot be achieved without reproducing the expressions of thoughts or sentiments thatwere put into musical works. In addition, it should also be said that musical performancesby a teacher are given for the purpose of causing a student to understand the expressionsof thoughts or sentiments in relevant musical works. Therefore, it is obvious that such
musical performances have the purpose of causing another person to enjoy the thoughts
or sentiments expressed in works. Consequently, the allegation mentioned in [i] above is15not acceptable.
Even if there are circumstances such as where musical performances by a teacher at
a music school differ from his/her authentic musical performances, the fact remains thatsuch musical performances have the purpose of causing students to enjoy the thoughts or
sentiments expressed in works, as mentioned above, and it is hardly possible that a teacher
repeats providing lessons without achieving such purpose. Therefore, the allegation
mentioned in [ii] above must be considered as unreasonable.
(D) All the other allegations of the Appellants are based on a different premise or are
groundless. Therefore, those allegations cannot affect the aforementioned determination.
Consequently, musical performances by a teacher should be considered as musicalperformances given "with the purpose of having them … heard directly by the public."
E. Summary
For the reasons described above, musical performances by a teacher should beconsidered, in light of the essence thereof, as being given "with the purpose of having
them heard" by students, who fall under "the public" as a non-exclusive group of persons,while music school operators that assume the obligation to teach based on the Lesson
Contracts serve as the actors of those acts.
(3) Regarding musical performance by a student
A. Regarding the essence of an act of musical performance by a student
In light of No. 2, 3.(1)A. of the judgment in prior instance cited herein and (2)A.
above, the Appellants provide lessons for teaching music and musical performancetechniques, etc. to students who have concluded the Lesson Contracts, which are contracts
on the teaching of music and contracts on the teaching of music instrument performancetechniques, by using teachers, with whom they have concluded an employment or quasimandate contract, for the purpose of teaching music and musical performance techniques,
etc.
Based on the above, it is reasonable to consider that the essence of an act of musicalperformance by a student at a music school is to have a teacher hear the musicalperformance for the purpose of receiving the teaching of music and musical performancetechniques, etc. based on the Lesson Contracts. Incidentally, an individual specific lesson
contract may include the provision of fully-equipped facilities and environment and theensuring of musical performances by using instruments, etc. provided by the relevant
music school operator. However, these matters cannot be considered as essential forreceiving the teaching of music and musical performance techniques, etc. and should beconsidered as nothing more than the additional acts of preparation and development of anenvironment based on an individual agreement. Therefore, it should be said that the16essence of a musical performance by a student at a music school exists in having it heard
by a teacher and thereby receiving guidance therefrom.
In addition, at a music school, a musical performance by a student is given solely toa teacher for the purpose of seeking guidance therefrom, and cannot be considered as
being given to other students. Therefore, it should be said that a student does not give amusical performance with the "purpose of having it heard" by other students, and it isalso obvious that the student cannot be considered as giving the musical performance withthe "purpose of having it heard" by him/herself (if that is the purpose, a student does notneed to give a musical performance at a music school). The Appellee alleges that a student
needs to carefully hear his/her own or other students' musical performances to improve
his/her musical performance techniques and then makes a reference of documentary
evidence (page 58 of Exhibit Otsu 57) and a testimony (page 15 of Witness Q in the priorinstance). However, this allegation must be considered as confusing the necessity andbenefits of having a student hear his/her own or other students' musical performances andthe issue of by whom a musical performance is to be heard as the purpose thereof.
B. Regarding the circumstances of a musical performance
As stated in List of Circumstances of Use of Works 1 attached to this judgment(Circumstances of Use 1), lessons are provided in classrooms set up by the Appellants(however, in the case of List of Circumstances of Use of Works 4 attached to the same
(Circumstances of Use 4), lessons are provided at students' homes), and a student repeats
the step of playing an assigned piece of music by several bars each in front of a teacher,while sometimes being accompanied by the teacher, the step of receiving explanations
about challenges and cautions in giving a musical performance from the teacher, and thestep of playing the assigned piece of music repeatedly after hearing relevant guidance andthen giving a musical performance to confirm the solution of each of the challenges. A
music score used in playing an assigned piece of music (a music score in which an
assigned piece of music is written; the same music score is used for all students in a classin the case of a group lesson) is one that the student has purchased in advance.
In addition, as stated in List of Circumstances of Use of Works 2 attached to thisjudgment (Circumstances of Use 2), at the music schools operated by the Appellants in
Attachment A, lessons are also given in classrooms set by the same Appellants. In thoselessons, in addition to musical performances by students in the same manner as
Circumstances of Use 1, a teacher sometimes plays back one or several bars or the wholeof a piece of music recorded in a commercially distributed CD or other sound recordingby changing the pitch, tempo, and other elements thereof as needed according to theprogress of a lesson and the students' proficiency and understanding, in lieu of playing an
17accompaniment by him/herself. As stated in List of Circumstances of Use of Works 3
attached to this judgment (Circumstances of Use 3), at the music schools operated by theAppellants in Attachment B, lessons are also provided in classrooms set by the same
Appellants. In those lessons, in addition to musical performances by students in the samemanner as Circumstances of Use 1, a teacher sometimes plays back a sound recording inthe same manner as in Circumstances of Use 2, except for the point that a sound recording
thus played back is a sound source from which the sound of the part for one instrument iseliminated.
C. Regarding the actors of musical performances(A) According to the above, students participate in lessons for the purpose of receiving
the teaching of music instrument performance techniques, etc. as a performance based on
the Lesson Contracts that they have concluded with the Appellants. Therefore, students
hold the right to receive teaching and have the obligation to pay lesson fees for theteaching. However, they do not assume the obligation to give musical performances at alevel higher than a prescribed level or the obligation to improve their own musicalperformance techniques, etc. in relation to either their teachers or the Appellants. Students
perform music for themselves solely for the purpose of improving their own musicalperformance techniques, etc. and it is left to their voluntary and independent attitude. The
Appellants that are music school operators can neither legally nor virtually force theirstudents to give musical performances beyond encouraging them to do so voluntarily.
Certainly, the Pieces of Music Managed by the Defendant are performed by students
because assigned pieces of music performed by them are selected from music scores thatthey have purchased in advance and the Pieces of Music Managed by the Defendant areincluded in those music scores. In addition, musical performances by students are given
in classrooms set by the Appellants, except for the cases of Circumstances of Use 4, andin such classrooms, there are ordinary sound facilities, sound recording players, and otherfacilities, in addition to instruments that cannot be easily carried, such as pianos andelectronic organs, which are installed at the Appellants' expense and are possessed andmanaged by the Appellants. However, as held in A. above, it should be said that theessence of a musical performance by a student at a music school exists just in having it
heard by a teacher and receiving guidance therefrom. The selection of a piece of music
and the provision and installation of instruments, facilities, etc. by the Appellants arenothing more than the additional acts of preparation and development of an environment
based on an individual agreement. Even if those acts constitute certain circumstances tobe considered in determining whether teachers are under the management and control of
the Appellants, they neither indicate that students, who are the Appellants' customers, are18

under their management and control, nor can they be considered as circumstancesindicating their direct involvement in musical performances by students themselves. Thisis also supported by the fact that musical performances by students that are to be given atmusic schools are also actually possible at students' homes, as shown in the case of
Circumstances of Use 4.
For the reasons described above, even if it can be said that students voluntarily andindependently give musical performances solely for the purpose of improving their own
musical performance techniques, etc. and that the Appellants conduct certain acts of
preparation and development of an environment with respect to the subject and methodsof musical performances, it must be said that it is difficult to consider musicalperformances by students as those given by the Appellants from the perspective of theessence of the musical performances by students, which are given for the purpose ofreceiving teaching. Therefore, the actors of musical performances by students should beconsidered to be those students.
(B) In contrast, as mentioned in No. 3, 2. [Defendant's allegations] (1)D.(B) and (C) of
the judgment in prior instance cited herein and No. 2, 5.(2)A.(C) above, the Appellee
alleges that musical performances by students are also recognized as being attributable tothe management and control and interest of the Appellants that are music school operatorsand that the actors of musical performances by students are also the Appellants in light of
the following points: [i] musical performances by students at music schools are given as
part of lessons based on the Lesson Contracts that the students have concluded with theAppellants and are not given independently of receipt of the lessons; [ii] they are given
under the guidance of a teacher to the extent necessary when they are considerednecessary from the perspective of the effect of education; [iii] musical works designatedas assigned pieces of music in music scores used for lessons specified by the Lesson
Contracts are played under the guidance and instruction of a teacher, in principle; [iv]musical performances by students are given by using sound facilities, sound recording
players, etc., sound recordings, instruments, etc. that are under the management of theAppellants; and [v] it is impossible to teach music instrument performance techniques
without exploiting musical works in music school businesses, and lesson fees paid basedon the Lesson Contracts include the value for exploitation of musical works.
However, it is obvious from the explanation above that it is impossible to consider theactors of students' voluntary musical performances to be music school operators justbased on the circumstances alleged by the Appellants in [i] to [iv] above. Incidentally, as
mentioned in No. 2, 5.(2)A.(B) above, the Appellee alleges that musical performances by
students should be equated with singing by customers at a karaoke bar. However, leaving
19

aside the legal position of such singing, in relation to singing by customers at a karaokebar, setting up of a karaoke room and 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, and in terms of the essence of the act of singing karaoke, singing at a karaoke
bar itself cannot be established without such acts. Therefore, singing by customers at a
karaoke bar should be considered as significantly different from this case in terms of its
nature.
Furthermore, regarding the circumstances alleged by the Appellee in [v] above, there
is no sufficient evidence to find that the value for exploitation of musical works in relation
to students' musical performances during lessons is included in lesson fees paid based on
the Lesson Contracts. In addition, at any rate, it should be said that music school operators
make profits by soliciting students solely owing to the method and content of theirteaching. It is hard to say that music school operators make profits directly from theirstudents' performances of musical works.
Therefore, all the aforementioned allegations of the Appellee are not acceptable.
(C) All the other allegations of the Appellee concerning the actors of musicalperformances by students are based on a different premise or are groundless. Therefore,
those allegations cannot affect the aforementioned determination.
D. Summary
As mentioned above, the actors of musical performances by students at music schools
are the relevant students; therefore, the Appellants assume neither the obligation tocompensate loss or damage based on the infringement of musical performance rights nor
the obligation to return unjust enrichment in relation to the Appellee due to musicalperformances by their students without the need to determine the remaining points(musical performances by students are given through payment of lesson fees bythemselves with the purpose of having them heard by a teacher of a specific music school
operator based on the Lesson Contracts; therefore, they cannot be considered as being
given "with the purpose of having them … heard directly by the public," and it is also
considered that there is no room for students to be considered to infringe musicalperformance rights).
Incidentally, adding a remark for confirmation, even assuming that the actors ofmusical performances by students at music schools are music school operators, in suchcase, as mentioned in A. above, the other party to the acts of music performances is ateacher as long as the essence of musical performances by students at music schools exists
in having them heard by a teacher and receiving guidance therefrom, and it means thatmusic school operators, who are the actors of such musical performances, give musical20

performances with the purpose of having them heard by the teacher, who should beequated with themselves. Therefore, it should be said that such musical performances
cannot be considered as those given "with the purpose of having them … heard directlyby the public" (the parties agree that a teacher does not fall under "the public" in relation
to musical performances by students; in addition, musical performance by a student
cannot be considered as being given with the purpose of having it heard by other students
or by him/herself, as explained in A. above, and such musical performance significantly
differs from singing, etc. at a karaoke bar (box), where a customer sings a song with the
purpose of having it heard by other persons in the same room or by him/herself, although
the actor of the musical performance is also considered to be the operator of the karaokebar (box)).
3. Regarding Issue 4 (whether a musical performance right extends to a musicalperformance of two or less bars at a music school)
As mentioned in No. 3, 4. [Plaintiffs' allegations] of the judgment in prior instancecited herein and No. 2, 5.(1)D. above, the Appellants allege as follows: as a musicalperformance of two or less bars of a piece of music at a music school is too short toidentify the piece of music played, and it thus cannot be considered as exerting thepersonality of the author of the piece of music; therefore, two or less bars of a piece ofmusic does not fall under a work, and such musical performance cannot be considered as
constituting exercise of a musical performance right.
However, it is hardly conceivable that any two bars that are taken out of a piece ofmusic do not have copyrightability.
As mentioned above, the purpose of musical performances at music schools is toacquire musical performance techniques, etc., and acquisition of musical performancetechniques, etc. cannot be achieved without reproducing the expressions of the thoughts
or sentiments expressed in a musical work. Therefore, it cannot be assumed that only parts
without copyrightability are repeatedly taught at music schools. Therefore, even ifmusical performances are given in units of two bars during a lesson, it is presumably
recognized as ordinary to play a certain bloc of phrase by two bars each, instead ofrepeatedly playing only specific two bars. No evidence against this has been submitted.
As stated in Circumstances of Use 1 to 4, it is predetermined that a specific assigned pieceof music is to be performed in a lesson. Therefore, even if specific two bars of an assigned
piece of music are played, it is clear what part of the assigned piece of music they are.
Even if two bars of an assigned piece of music are played in various forms in a continuousand overlapping way, that is recognized as a musical performance of the assigned pieceof music, and it is reasonable to consider that such musical performance expresses the21characteristics of the whole piece of music while realizing the essential characteristics
thereof.
Therefore, the aforementioned allegation of the Appellants is not acceptable, and theact of infringement of a musical performance right arises, irrespective of the number ofbars played.
4. Regarding Issue 5 (establishment or non-establishment of exhaustion of musicalperformance rights)
This court also determines that musical performance rights have yet to be exhausted
for pieces of music used by the Appellants during lessons. Regarding reasons therefor,the court agrees with and cites herein the statements in No. 4, 5. of the judgment in priorinstance, except for making the following corrections and adding a determination
concerning the supplementary allegations of the Appellants in this instance.
(1) Correction of the judgment in prior instanceA. The phrase "in transferring the right" in line 22 on page 69 is altered to "in transferring
the right or authorizing exploitation thereof."
B. The sentence from "music school" in line 8 to the end of line 10 on page 70 is alteredto "even if a music score or sound source from which the sound of the part for one
instrument is eliminated is prepared to be used for lessons at music schools, it cannot be
said that it will be used only for musical performances in the forms, to which its musicalperformance right extends, after being purchased."(2) Determination concerning the supplementary allegations of the Appellants in thisinstance
As mentioned in No. 2, 5.(2)E. above, the Appellants allege as follows: [i] a musicalperformance right is exhausted if the right owner has an opportunity to acquire a value
for the musical performance right; music scores placed in a textbook and sound sourcesfrom which the sound of the part for one instrument is eliminated are primarily used forlessons at music schools; and before exploiting musical works, the Appellants submitted
written applications for exploitation to the Appellee, and the Appellee could know inadvance that those pieces of music would be used in lessons as teaching materials at music
schools based on the statements in the relevant written application for exploitation by
printing (Exhibit Ko 46) and written application for exploitation by recording (Exhibit
Ko 47); [ii] it is just that one copyright arises from one creation, and establishment of
exhaustion is not precluded by a difference in the type of copyright.
However, as explained in the judgment in prior instance, the ground for exhaustion
exists in the promotion of the harmony between protection of safety in transactions of
persons who have entered into transactional relationships, including transfer of copyright22

and authorization to exploit a work, and protection of the interest of copyright owners
who obtain gains through economic exploitation of works. Based on that, the value
acquired by a copyright owner upon preparation of a music score or a sound source
eliminating the sound of the part for one instrument is the value for exercise of the rightof reproduction (Article 21 of the Copyright Act), and the value for exploitation during
lessons at music schools is the value for exercise of a musical performance right (Article
22 of the Copyright Act). Therefore, these values are those for exercise of different typesof copyrights that completely differ in the method of exercise. As long as those copyrights
differ as rights, even if they are for a work created through one act of creation, there isneither reason for evaluating acquisition of the value for exploitation of the work withrespect to each type of those copyrights as obtainment of duplicate gains nor reason forevaluating that it is unjust if those copyrights are not concurrently exercised. Moreover,
if a musical performance right is found to be exhausted based on an exercise of the rightof reproduction with no limitation, a musical work will be performed with almost no
limitation if only the right of reproduction is exercised once. It is obvious that this will
unjustly harm the economic interest of copyright owners. Even if the scope of exhaustion
is determined within the scope in which a copy of a musical work and a performance
thereof can be associated with each other, various circumstances are assumed concerning
the exercise of a musical performance right, including whether a musical performance isgiven while using a copy of a musical work and to what extent. It is difficult to predictthese circumstances at the stage of exercising the right of reproduction. Therefore, it ishard to say that a copyright owner has had an opportunity to collect the value at the stageof exercising the right of reproduction.
For the reasons described above, even if music scores placed in a textbook and soundsources eliminating the sound of the part for one instrument are suited to be used during
lessons at music schools, they are not always used for musical performances only in thecircumstances where musical performance rights extend, and even on the premise thatthey are used during lessons at music schools, it is still difficult to ascertain specificcircumstances of exploitation and collect the value therefor. Therefore, it should beconsidered as lacking a substantial ground to find exhaustion of a musical performanceright at the stage of exercise of the right of reproduction. It is obvious that even if a written
application for exploitation includes a statement from which a scheduled exploitation ata music school can be understood, it does not immediately give a ground for exhaustionof a musical performance right.
Therefore, the aforementioned allegation of the Appellants is groundless.
5. Regarding Issue 6 (whether there is a ground for denying substantial illegality
23pertaining to playback of sound recordings)
This court also determines that the substantial illegality of infringement of a musicalperformance right is not denied with respect to playback of a sound recording of a musicalwork at a music school. Regarding reasons therefor, except for altering the term "teachers"in line 13 on page 71 of the judgment in prior instance to "individual teachers," the court
agrees with and cites herein the statements in No. 4, 6. of the same.
6. Regarding Issue 7 (whether the Appellee's act constitutes an abuse of right)
This court also determines that the Appellee's collection of royalties for works withrespect to musical performances at music schools does not constitute an abuse of right.
Regarding reasons therefor, except for making the following corrections and adding adetermination concerning the supplementary allegations of the Appellants in this instance,
the court agrees with and cites herein the statements in No. 4, 7. of the judgment in priorinstance.
(1) Correction of the judgment in prior instance
The phrase "in relation to all the Appellants" is added following the word "theDefendant" in line 23 on page 72, and the phrase "there are reasonable grounds for the
Defendant's having failed to exercise the right until Article 14 of the Copyright Act was
abolished" in line 11 on page 73 is altered to the phrase "the Defendant's failure to exercise
the right until Article 14 of the Copyright Act was abolished cannot be consideredunreasonable."(2) Determination concerning the supplementary allegations of the Appellants in thisinstance
As mentioned in No. 2, 5.(1)F. above, the Appellants allege as follows: [i] Article 14of the Supplementary Provisions of the Copyright Act does not restrict copyright owner's
rights in relation to "musical performances," which make up a large portion of musicalperformances given during lessons at music schools, but in relation to "musicalperformances by playing back sound recordings," which merely fall undercomplementary teaching materials in lessons at music schools; therefore, existence ofArticle 14 of the same Act does not serve as a ground for failure to exercise rights inrelation to the aforementioned musical performances; [ii] the Appellee has not claimed
royalties for works in relation to musical performances by teachers during lessons justbecause it has not considered that it should collect royalties for copyrights in relation tomusical performances given during lessons.
However, in the following Appellants' allegation itself, it is originally impossible toconsider that the failure to exercise rights and the effect of lapse of the rights conform toeach other: even if the Appellee may be able to start managing musical performance rights
24

for works exploited by music school operators, it had not exercised rights until 2003,
which is more than 17 years before the time of the conclusion of the oral argument of thiscase, January 2021, and therefore it is unable to claim royalties for the works in and after
2003 as well.
A simple failure to exercise a right may cause not only the completion of prescription
but also the lapse of the right in the future only in cases where there are special
circumstances in which the exercise of a right by a right owner can never be acceptedfrom the perspective of legal equity and legal justice, such as the case where the rightowner had continued to take actions over years that caused a person assuming theobligation to have a high level of confidence that the right owner would not exercise
his/her right, as a result, the person assuming the obligation made a significant investment,
etc. that the person would have never been able to make if the right owner exercised
his/her right. However, in this case, the Appellee started exercising its rights with respect
to musical performances given during lessons at music schools: at least against Appellant
Yamaha, 17 years before. In addition, there are also no special circumstances based on
which the Appellants' confidence regarding non-exercise of rights should be protected.
Therefore, the Appellants' allegation of abuse of right is groundless.
7. Overview(1) Regarding the principal claims
As determined in 2.(2) and 3. above, regarding an act of musical performance
conducted by one teacher in a classroom during a lesson at a music school (including
playback of a commercially distributed CD or other sound recording and a sound sourcefrom which the sound of the part for one instrument is eliminated), the relevant Appellantsthat are music school operators are the actors of exploitation, and such musicalperformance is one that is given "with the purpose of having it heard" by a student that
can also be considered as "the public," even if it is only one student, irrespective ofwhether the whole of a piece of music is sometimes performed and whether two or lessbars of a piece of music are played in one musical performance. Therefore, such musicalperformance constitutes exercise of a musical performance right. As determined in 4. to
6. above (Issues 5 to 7), with respect to exercise of musical performance rights by theAppellants, musical performance rights for pieces of music used in lessons at music
schools are not exhausted, and there are no grounds for denying the substantial illegality
pertaining to playback of sound recordings of those pieces of music, and the Appellee's
collection of royalties for works in relation to relevant musical performances does notconstitute an abuse of right. Therefore, all the Circumstances of Use 1 to 4 constituteinfringement of musical performance rights.
25

For the reasons described above, the Appellee holds a claim for compensation for loss
or damage based on copyright infringement or claim for the return of unjust enrichmentwith respect to the musical performances of Pieces of Music Managed by the Defendantby teachers during lessons at music schools (Circumstances of Use 1 to 4).
(2) Regarding the alternative claims
A. Paragraph 6(1)(ii) and (iv) and (2)(ii) and (iv), paragraph 7, paragraph 8, and paragraph9(ii) and (iv) of the alternative claims
As mentioned in (1) above, as long as an act of musical performance conducted by
one teacher in a classroom during a lesson at a music school (including playback of acommercially distributed CD or other sound recording and a sound source from which
the sound of the part for one instrument is eliminated) constitutes infringement of amusical performance right, the conclusion also remains unchanged with respect to claims
made in units of individual acts of musical performances by teachers during lessons.
B. Paragraph 6(1)(i) and (iii) and (2)(i) and (iii) and paragraph 9(i) and (iii) of thealternative claims
As determined in 2.(3) above, the actor of exploitation for an act of musicalperformance conducted by a student in a classroom during a lesson at a music school isthat student, or at any rate, such musical performance is not given "with the purpose of
having it … heard directly by the public." Therefore, such musical performance does notconstitute exercise of a musical performance right, and neither Circumstances of Use 1
nor 4 constitutes infringement of musical performance rights.
For the reasons described above, the Appellee holds neither claim for compensation
for loss or damage based on copyright infringement nor claim for the return of unjust
enrichment against the Appellants with respect to musical performances of the Pieces ofMusic Managed by the Defendant (Circumstances of Use 1 and 4) by students during
lessons at music schools.
8. Conclusion
Therefore, the Appellants' principal claims are groundless, and the judgment in priorinstance that dismissed those claims are reasonable. The appeal pertaining to the principal
claims is groundless, and thus it is dismissed. On the other hand, the alternative claims of
the Appellants are well-grounded to the extent of Paragraph 2(1) and (2) of the main text
but are groundless for others (the claims stated in Paragraph 6(1)(i) and (iii) and (2)(i)and (iii) as well as Paragraph 9(i) and (iii) in the List of Claims attached to this judgment
are well-grounded, and other claims are groundless), and the judgment in prior instancethat dismissed all the alternative claims is thus not reasonable. Therefore, the judgmentin prior instance is modified, and the judgment is rendered as indicated in the main text.
26

Intellectual Property High Court, Fourth Division
Presiding judge: KANNO Masayuki
Judge: MOTOYOSHI Hiroyuki
Judge: NAKAMURA Kyo

27

(Attachment)
List of Claims
1. The judgment in prior instance shall be revoked.
(Principal claims)
2. Regarding musical performances stated in List of Circumstances of Use of Works 1
attached to this judgment(1) Regarding lessons between a teacher and around 10 or fewer multiple students(i) Regarding the case where the whole of a piece of music is never performed
It is hereby declared that in the relationships between the Appellants and the Appellee,
the Appellee holds no claim pertaining to the use of works (meaning all pieces of musicthat the Appellee (the defendant in first instance) manages as of January 14, 2021;
hereinafter referred to as the "Pieces of Music Managed by the Defendant"), which it
possesses by accepting the trust of copyrights transferred for the purpose of collecting
royalties for works or the entrustment of such collection from copyright owners, withrespect to the musical performances stated in List of Circumstances of Use of Works 1
attached to this judgment (limited to the cases where the whole of a piece of music isnever performed) during lessons between a teacher and around 10 or fewer multiple
students (meaning lessons for 30 to 60 minutes at music schools; the same applies
hereinafter), which are provided based on contracts for the teaching of music andtechniques for musical performance (including singing; the same applies hereinafter) that
the Appellants have concluded with their students (hereinafter referred to as the "Lesson
Contracts"), respectively.
(ii) Regarding the case where the whole of a piece of music is sometimes performed
It is hereby declared that in the relationships between the Appellants and the Appellee,
the Appellee holds no claim pertaining to the use of the Pieces of Music Managed by the
Defendant with respect to the musical performances stated in List of Circumstances of
Use of Works 1 attached to this judgment (limited to the cases where the whole of a pieceof music is sometimes performed) during lessons between a teacher and around 10 or
fewer multiple students, which are provided based on the Lesson Contracts that theAppellants have concluded with their students, respectively.
(2) Regarding lessons between a teacher and a student(i) Regarding the case where the whole of a piece of music is never performed
It is hereby declared that in the relationships between the Appellants and the Appellee,
the Appellee holds no claim pertaining to the use of the Pieces of Music Managed by the
Defendant with respect to the musical performances stated in List of Circumstances of
Use of Works 1 attached to this judgment (limited to the cases where the whole of a piece28

of music is never performed) during lessons between a teacher and a student, which areprovided based on the Lesson Contracts that the Appellants have concluded with theirstudents, respectively.
(ii) Regarding the case where the whole of a piece of music is sometimes performed
It is hereby declared that in the relationships between the Appellants and the Appellee,
the Appellee holds no claim pertaining to the use of the Pieces of Music Managed by the
Defendant with respect to the musical performances stated in List of Circumstances of
Use of Works 1 attached to this judgment (limited to the cases where the whole of a pieceof music is sometimes performed) during lessons between a teacher and a student, which
are provided based on the Lesson Contracts that the Appellants have concluded with theirstudents, respectively.
3. Regarding musical performances and playback of sound recordings stated in List of
Circumstances of Use of Works 2 attached to this judgment(1) Regarding lessons between a teacher and 10 or fewer multiple students(i) Regarding the case where the whole of a piece of music is never performed nor
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants stated in
Attachment A (hereinafter referred to as "the Appellants in Attachment A") and theAppellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 2 attached to this judgment (limited to the cases where the whole of a piece ofmusic is never performed nor performed by playback of a sound recording) during lessons
between a teacher and around 10 or fewer multiple students, which are provided based on
the Lesson Contracts that the Appellants in Attachment A have concluded with theirstudents, respectively.
(ii) Regarding the case where the whole of a piece of music is sometimes performed or
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants in Attachment
A and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces ofMusic Managed by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 2 attached to this judgment (limited to the cases where the whole of a piece ofmusic is sometimes performed or performed by playback of a sound recording) during
lessons between a teacher and around 10 or fewer multiple students, which are provided
based on the Lesson Contracts that the Appellants in Attachment A have concluded with29

their students, respectively.
(2) Regarding lessons between a teacher and a student(i) Regarding the case where the whole of a piece of music is never performed nor
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants in Attachment
A and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces ofMusic Managed by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 2 attached to this judgment (limited to the cases where the whole of a piece ofmusic is never performed nor performed by playback of a sound recording) during lessons
between a teacher and a student, which are provided based on the Lesson Contracts that
the Appellants in Attachment A have concluded with their students, respectively.
(ii) Regarding the case where the whole of a piece of music is sometimes performed or
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants in Attachment
A and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces ofMusic Managed by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 2 attached to this judgment (limited to the cases where the whole of a piece ofmusic is sometimes performed or performed by playback of a sound recording) during
lessons between a teacher and a student, which are provided based on the Lesson
Contracts that the Appellants in Attachment A have concluded with their students,
respectively.
4. Regarding musical performances and musical performances by playback of soundrecordings stated in List of Circumstances of Use of Works 3 attached to this judgment(1) Regarding lessons between a teacher and around 10 or fewer multiple students(i) Regarding the case where the whole of a piece of music is never performed nor
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants stated in
Attachment B (hereinafter referred to as "the Appellants in Attachment B") and theAppellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 3 attached to this judgment (limited to the cases where the whole of a piece ofmusic is never performed nor performed by playback of a sound recording) during lessons
between a teacher and around 10 or fewer multiple students, which are provided based on
30

the Lesson Contracts that the Appellants in Attachment B have concluded with theirstudents, respectively.
(ii) Regarding the case where the whole of a piece of music is sometimes performed or
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants in Attachment B
and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 3 attached to this judgment (limited to the cases where the whole of a piece ofmusic is sometimes performed or performed by playback of a sound recording) during
lessons between a teacher and around 10 or fewer multiple students, which are provided
based on the Lesson Contracts that the Appellants in Attachment B have concluded with
their students, respectively.
(2) Regarding lessons between a teacher and a student(i) Regarding the case where the whole of a piece of music is never performed nor
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants in Attachment B
and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 3 attached to this judgment (limited to the cases where the whole of a piece ofmusic is never performed nor performed by playback of a sound recording) during lessons
between a teacher and a student, which are provided based on the Lesson Contracts that
the Appellants in Attachment B have concluded with their students, respectively.
(ii) Regarding the case where the whole of a piece of music is sometimes performed or
performed by playback of a sound recording
It is hereby declared that in the relationships between the Appellants in Attachment B
and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the musical performances and musicalperformances by playback of sound recordings stated in List of Circumstances of Use ofWorks 3 attached to this judgment (limited to the cases where the whole of a piece ofmusic is sometimes performed or performed by playback of a sound recording) during
lessons between a teacher and a student, which are provided based on the Lesson
Contracts that the Appellants in Attachment B have concluded with their students,
respectively.
5. Regarding musical performances stated in List of Circumstances of Use of Works 431

attached to this judgment(1) Regarding the case where the whole of a piece of music is never performed
It is hereby declared that in the relationships between the Appellants stated in
Attachment C (hereinafter referred to as "the Appellants in Attachment C") and theAppellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the musical performances stated in List of
Circumstances of Use of Works 4 attached to this judgment (limited to the cases where
the whole of a piece of music is never performed) during lessons, which are provided
based on the Lesson Contracts that the Appellants in Attachment C have concluded with
their students, respectively.
(2) Regarding the case where the whole of a piece of music is sometimes performed
It is hereby declared that in the relationships between the Appellants in Attachment C
and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the musical performances stated in List of
Circumstances of Use of Works 4 attached to this judgment (limited to the cases where
the whole of a piece of music is sometimes performed) during lessons, which are provided
based on the Lesson Contracts that the Appellants in Attachment C have concluded with
their students, respectively.
(Alternative claims)
6. Regarding musical performances stated in List of Circumstances of Use of Works 1
attached to this judgment
It is hereby declared that in the relationships between the Appellants and the Appellee,
the Appellee holds no claim pertaining to the use of the Pieces of Music Managed by the
Defendant with respect to the following musical performances during lessons, which areprovided based on the Lesson Contracts that the Appellants have concluded with theirstudents, respectively:(1) the following musical performances stated in List of Circumstances of Use of Works
1 attached to this judgment during lessons between a teacher and around 10 or fewer
multiple students:(i) musical performances of three or more consecutive bars by a student;(ii) musical performances of three or more consecutive bars by a teacher;(iii) musical performances of two or less consecutive bars by a student; and(iv) musical performances of two or less consecutive bars by a teacher; and(2) the following musical performances stated in List of Circumstances of Use of Works
1 attached to this judgment during lessons between a teacher and a student:(i) musical performances of three or more consecutive bars by a student;
32

(ii) musical performances of three or more consecutive bars by a teacher;(iii) musical performances of two or less consecutive bars by a student; and(iv) musical performances of two or less consecutive bars by a teacher.
7. Regarding musical performances by playback of sound recordings stated in List of
Circumstances of Use of Works 2 attached to this judgment
It is hereby declared that in the relationships with the Appellants in Attachment A andthe Appellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the following music performances during
lessons, which are provided based on the Lesson Contracts that the Appellants in
Attachment A have concluded with their students, respectively:(1) musical performances by playback of sound recordings stated in List of Circumstancesof Use of Works 2 attached to this judgment during lessons between a teacher and around
10 or fewer multiple students; and(2) musical performances by playback of sound recordings stated in List of Circumstancesof Use of Works 2 attached to this judgment during lessons between a teacher and a
student.
8. Regarding musical performances by playback of sound recordings stated in List of
Circumstances of Use of Works 3 attached to this judgment
It is hereby declared that in the relationships with the Appellants in Attachment B andthe Appellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the following music performances during
lessons, which are provided based on the Lesson Contracts that the Appellants in
Attachment B have concluded with their students, respectively:(1) musical performances by playback of sound recordings stated in List of Circumstancesof Use of Works 3 attached to this judgment during lessons between a teacher and around
10 or fewer multiple students; and(2) musical performances by playback of sound recordings stated in List of Circumstancesof Use of Works 3 attached to this judgment during lessons between a teacher and a
student.
9. Regarding musical performances stated in List of Circumstances of Use of Works 4attached to this judgment
It is hereby declared that in the relationships between the Appellants in Attachment C
and the Appellee, the Appellee holds no claim pertaining to the use of the Pieces of MusicManaged by the Defendant with respect to the following musical performances during
lessons, which are provided based on the Lesson Contracts that the Appellants in
Attachment C have concluded with their students, respectively:
33the following musical performances stated in List of Circumstances of Use of Works 4attached to this judgment:(i) musical performances of three or more consecutive bars by a student;(ii) musical performances of three or more consecutive bars by a teacher;(iii) musical performances of two or less consecutive bars by a student; and(iv) musical performances of two or less consecutive bars by a teacher.
(End)

34

(Attachment)
List of Circumstances of Use of Works 1(Use during lessons in which no sound recording is played back)Musical performances in the following circumstances during lessons (in which nosound recording is played back) at music schools(Places of lessons)Classrooms set up by the Appellants which persons other than a teacher, students andtheir custodians are not permitted to enter(Members of lessons)
There are private lessons between a student and a teacher in charge and group lessons
in which one teacher in charge gives guidance to multiple students. Even in the case of agroup lesson, the number of students who receive a lesson is ordinarily from three to five,and the maximum number is 10.
A specific teacher continuously gives guidance to a specific student(s) with theunderstanding of the characteristics and personality of each student. A teacher for a classis never changed unless there are special circumstances.
(Circumstances of musical performances)
Musical performances given by students and teachers using music scores that they
have purchased in advance, which are given in the course of practice and guidance asfollows:
on such occasions as when a student plays an assigned piece of music for the first time, ateacher presents challenges by playing the whole or part of the assigned piece of music
ahead of the student's performance as needed,
the student plays the assigned piece of music by several bars each that include thechallenges thus presented in the piece of music in front of the teacher (the teacher
sometimes plays an accompaniment for the student's musical performance),
the teacher who has heard the student's musical performance in his/her direct presenceorally explains to the student about challenges and gives cautions regarding giving a
musical performance while playing the relevant parts as an example as needed,
after hearing the teacher's guidance, the student plays the assigned piece of music again,
and after repeating the aforementioned steps,
the student plays the parts of the assigned piece of music that he/she has practiced (notthe whole of the assigned piece of music) or the whole of the assigned piece of music toconfirm whether he/she has accomplished each challenge (the teacher sometimes plays
an accompaniment for the student's musical performance)
(End)
35

(Attachment)
List of Circumstances of Use of Works 2(Use during lessons in which a commercially distributed CD or other sound recording isplayed back)Musical performances in the following circumstances during lessons at music schools(in addition to musical performances by students and a teacher, musical performances are
given by playing back a commercially distributed CD or other sound recording, which
includes the sound of musical performances of all instruments, including the sound of an
instrument that students play)(Places of lessons)Classrooms set up by the Appellants which persons other than a teacher, students andtheir custodians are not permitted to enter(Members of lessons)
There are private lessons between a student and a teacher in charge and group lessons
in which one teacher in charge gives guidance to multiple students. Even in the case of agroup lesson, the number of students who receive a lesson is ordinarily from three to five,and the maximum number is 10.
A specific teacher continuously gives guidance to a specific student(s) with theunderstanding of the characteristics and personality of each student. A teacher for a classis never changed unless there are special circumstances.
(Circumstances of musical performances)
1. Musical performances given by students and teachers using music scores that they havepurchased in advance, which are given in the course of practice and guidance as follows:on such occasions as when a student plays an assigned piece of music for the first time, ateacher presents challenges by playing the whole or part of the assigned piece of music
ahead of the student's performance as needed,
the student plays the assigned piece of music by several bars each that include thechallenges thus presented in the piece of music in front of the teacher (the teacher
sometimes plays an accompaniment for the student's musical performance),
the teacher who has heard the student's musical performance in his/her direct presence
explains to the student about challenges and gives cautions regarding giving a musicalperformance while playing the relevant parts as an example as needed,
after hearing the teacher's guidance, the student plays the assigned piece of music again,
and after repeating the aforementioned steps,
the student plays the parts of the assigned piece of music that he/she has practiced (notthe whole of the assigned piece of music) or the whole of the assigned piece of music as36

a final step to confirm whether he/she has accomplished each challenge (the teacher
sometimes plays an accompaniment for the student's musical performance)
2. Musical performances by playback of a commercially distributed CD or other soundrecordingMusical performances by playback of a commercially distributed CD or other soundrecording, which includes the sound of musical performances of all instruments,
including the sound of an instrument that students play,which are given in units of one to several bars of a piece of music or throughout a pieceof music by changing the pitch, tempo, and other elements thereof according to theprogress of a lesson and the students' proficiency and understanding
(End)

37

(Attachment)
List of Circumstances of Use of Works 3(Use during lessons in which a sound source from which the sound of the part for one
instrument is eliminated is played back)Musical performances in the following circumstances during lessons at music schools(in addition to musical performances by students and a teacher, musical performances are
given by playing back a CD or other sound recording of a music instrument performance,from which only the sound of the part for an instrument played by a student(s) iseliminated (a sound source from which the sound of the part for one instrument iseliminated))(Places of lessons)Classrooms set up by the Appellants which persons other than a teacher, students andtheir custodians are not permitted to enter(Members of lessons)
There are private lessons between a student and a teacher in charge and group lessons
in which one teacher in charge gives guidance to multiple students. Even in the case of agroup lesson, the number of students who receive a lesson is ordinarily from three to five,and the maximum number is 10.
A specific teacher continuously gives guidance to a specific student(s) with theunderstanding of the characteristics and personality of each student. A teacher for a classis never changed unless there are special circumstances.
(Circumstances of musical performances)
1. Musical performances given by students and teachers using music scores that they havepurchased in advance, which are given in the course of practice and guidance as follows:on such occasions as when a student plays an assigned piece of music for the first time, ateacher presents challenges by playing the whole or part of the assigned piece of music
ahead of the student's performance as needed,
the student plays the assigned piece of music by several bars each that include thechallenges thus presented in the piece of music in front of the teacher (the teacher
sometimes plays an accompaniment for the student's musical performance),
the teacher who has heard the student's musical performance in his/her direct presenceorally explains to the student about challenges and gives cautions regarding giving a
musical performance while playing the relevant parts as an example as needed,
after hearing the teacher's guidance, the student plays the assigned piece of music again,
and after repeating the aforementioned steps,
the student plays the parts of the assigned piece of music that he/she has practiced (not38the whole of the assigned piece of music) or the whole of the assigned piece of music toconfirm whether he/she has accomplished each challenge (the teacher sometimes plays
an accompaniment for the student's musical performance)
2. Musical performances by playback of a sound recording (a sound source from which
the sound of the part for one instrument is eliminated)
Musical performances by playing back a CD or other sound recording of a music
instrument performance, from which only the sound of the part for an instrument played
by a student(s) is eliminated (a sound source form which the sound of the part for one
instrument is eliminated),
which are given in units of one to several bars of a piece of music or throughout a pieceof music by changing the pitch, tempo, and other elements thereof according to theprogress of a lesson and the students' proficiency and understanding
for the purpose of using the sound recording as a partner for students' musicalperformances in lieu of an accompaniment by a teacher
(End)

39

(Attachment)
List of Circumstances of Use of Works 4(Use during lessons at non-corporate schools in which no sound recording is playedback)Musical performances in the following circumstances during lessons at music schools(no sound recording is played back)(Places of lessons)Student's homes that are places which persons other than a teacher, a student andhis/her custodians are not permitted to enter(Members of lessons)A specific teacher continuously gives guidance to a specific individual student withthe understanding of the characteristics and personality of the student.
(Circumstances of musical performances)
Musical performances given by a student and a teacher using music scores that they
have purchased in advance, which are given in the course of practice and guidance asfollows:
under the situation in which no musical performance is given by playing back a soundrecording,on such occasions as when a student plays an assigned piece of music for the first time, ateacher presents challenges by playing the whole or part of the assigned piece of music
ahead of the student's performance as needed and the student plays the assigned piece ofmusic by several bars each that include the challenges thus presented in the piece of musicin front of the teacher (the teacher sometimes plays an accompaniment for the student's
musical performance),
the teacher who has heard the student's musical performance in his/her direct presence
explains to the student about challenges and gives cautions regarding giving a musicalperformance while playing the relevant parts as an example as needed,
after hearing the teacher's guidance, the student plays the assigned piece of music again,
and after repeating the aforementioned steps,
the student plays the parts of the assigned piece of music that he/she has practiced (notthe whole of the assigned piece of music) or the whole of the assigned piece of music toconfirm whether he/she has accomplished each challenge (the teacher sometimes plays
an accompaniment for the student's musical performance)
(End)

40

(Attachment A) (omitted)(Attachment B) (omitted)(Attachment C) (omitted)(Attachment) (omitted)

41

(Attachment)
List of the Parties*1
Appellants: Yamaha Music Foundation(others omitted herein)

Appellee: Japanese Society for Rights of Authors, Composers and Publishers(End)

42