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judgedate----------------------------------------------------------------2022.10.24=================================================================
caseid----------------------------------------------------------------2021(Ju)1112=================================================================
reporter----------------------------------------------------------------Minshu Vol. 76, No. 6=================================================================
casetitle----------------------------------------------------------------Judgment concerning the case in which the court determined that, in relation tomusical performances during lessons by persons who have concluded contracts on theteaching of musical performance techniques, etc. with music school operators (students),
the operators cannot be considered to be the actors of exploitation of musical works=================================================================
casename----------------------------------------------------------------Case seeking a declaratory judgment of non-existence of claims pertaining to the use ofworks at music schools=================================================================

1caseresult----------------------------------------------------------------Judgment of the First Petty Bench, dismissed=================================================================
court_second----------------------------------------------------------------Intellectual Property High Court, Judgment of March 18, 2021=================================================================
summary_judge----------------------------------------------------------------Where persons who have concluded contracts on the teaching of musical performancetechniques, etc. with music school operators (students) pay lesson fees to theaforementioned operators and play assigned pieces of music: including musical works
managed by a copyright manager, during lessons for the teaching of musicalperformance techniques, etc. under the instruction and guidance of teachers based on
the aforementioned contracts, under the circumstances held in this judgment, including
those mentioned in (1) to (3) below, the operators cannot be considered to be the actorsof exploitation of the aforementioned musical works in relation to musical performancesby students during the lessons.
(1) Students give musical performances for the purpose of acquiring and improving
musical performance techniques, etc. by receiving the teaching from teachers, andplaying the aforementioned assigned pieces of music is a mere means for achieving that
purpose.
(2) Musical performances by students are established only by students' acts without
requiring teachers' acts. Even if a teacher plays an accompaniment and plays back2

various sound recordings, these acts only assist musical performances by students.
(3) Teachers' acts of selecting assigned pieces of music and providing instruction andguidance on musical performances by students are merely to help students achieve thepurpose mentioned in (1) above.
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references----------------------------------------------------------------Article 22 of the Copyright Act
Copyright Act(Stage Performance Rights and Musical Performance Rights)
Article 22The author of a work has the exclusive right to give a stage performance ormusical performance of the work with the purpose of having it seen or heard directlyby the public (hereinafter referred to as "publicly").
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maintext----------------------------------------------------------------The final appeal is dismissed.
The costs of the final appeal shall be borne by the appellant of final appeal.
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reason----------------------------------------------------------------Concerning Reason II for a petition for acceptance of final appeal stated by the counsel
for final appeal, TANAKA Yutaka, et al.
1. The outline of facts lawfully determined by the court of prior instance is as follows.
(1) The appellant is a copyright manager provided in Article 2, paragraph (3) of the3

Copyright Management Business Act and manages copyrights for musical works byreceiving the entrustment of copyrights from copyright owners (hereinafter musicalworks managed by the appellant are referred to as the "Managed Works").
(2) The appellees are those who operate music schools and provide: by themselves or byusing their employees, etc. as teachers, lessons for teaching music and techniques formusical performances (including singing; the same applies hereinafter) (hereinafter
merely referred to as "lessons") to persons who have concluded contracts concerning theteaching of the aforementioned musical performance techniques, etc. with the appellees(hereinafter referred to as "students").
Based on the aforementioned contracts, students pay lesson fees to the appellees andplay assigned pieces of music including the Managed Works (hereinafter merelyreferred to as "assigned pieces of music") during lessons under the instruction andguidance of teachers.
2. This is a case against the appellant as the defendant in which the appellees seek adeclaratory judgment of non-existence of the appellant's claims against the appellees
for compensation for loss or damage based on a tort, etc. on the grounds of infringementof copyrights (musical performance rights) for the Managed Works. The issue of thiscase is whether the appellees are the actors of exploitation of the Managed Works inrelation to musical performances by students during lessons.
3. The counsel for final appeal argues that the determination of the court of priorinstance contains an error in the interpretation and application of laws and regulations
and a violation of a judicial precedent in that it determined that the appellees cannot
be considered to be the actors of exploitation of the Managed Works that are played bytheir students though students give musical performances under the strong
management and control of teachers based on the aforementioned contracts concluded

4with the appellees and the appellees gain economic benefits from assigned pieces ofmusic being played by students at music schools that they operate for commercial
purposes.
4. In determining the actor of exploitation of a musical work in the form of musicalperformance, it is reasonable to take into consideration various circumstances,including the purpose and form of the musical performance and the details and extent,etc. of the actor's involvement in the musical performance. Students give musicalperformances during lessons at music schools operated by the appellees for the purposeof acquiring and improving musical performance techniques, etc. by receiving theteaching from teachers, and playing assigned pieces of music is a mere means forachieving that purpose. Thus, musical performances by students are established only
by students' acts without requiring teachers' acts. In relation to the aforementioned
purpose, only musical performances by students have an important meaning. Even if ateacher plays an accompaniment and plays back various sound recordings, these acts
only assist musical performances by students. In addition, teachers select assigned
pieces of music and provide their students with instruction and guidance on musicalperformances of those pieces of music. However, these acts are merely to help students
achieve the aforementioned purpose, and students just voluntarily and independently
play assigned pieces of music and are not forced to do so. Incidentally, although theappellees receive payment of lesson fees from their students, lesson fees are
considerations for receiving the teaching of musical performance techniques, etc. andcannot be considered as those for playing assigned pieces of music.
In comprehensive consideration of these circumstances, the appellees cannot be
considered to be the actors of exploitation of the Managed Works in relation to musicalperformances by students during lessons.

55. The determination of the court of prior instance to the same effect as above islegitimate and can be accepted. All the judicial precedents cited in the counsel'sarguments are irrelevant in this case because they addressed different types of facts.
The arguments made by the counsel are not acceptable.
Accordingly, the Court unanimously decides as set forth in the main text of thejudgment.
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presiding----------------------------------------------------------------Justice MIYAMA Takuya
Justice YAMAGUCHI Atsushi
Justice YASUNAMI Ryosuke
Justice OKA Masaaki
Justice SAKAI Toru=================================================================
note_other----------------------------------------------------------------(This translation is provisional and subject to revision.)6