Thursday, October 10, 2013
On September 30, 2013, the first judgment on this issue was rendered, which is a victory of the authors and the defeat of the scanning companies.
The plaintiffs are popular novel writers and manga artists. The two defendants are the companies providing scanning business. Upon request of the customers, the defendants scan the books for them and deliver the pdf files of the books in return for some (usually cheap) fee. The defendants have not gotten any permission from the authors including the plaintiffs. The plaintiff’s argument is very simple. The defendants copied the plaintiffs’ books without their permission and it is an infringement of the plaintiffs’ copyright.
The defendants’ argument is that it is the customers of the defendants who do the copying, and the scanning companies are just assisting them. In Japan, if it is a private use, copying or other activities are exempted (Article 30 of the Copyright Act). So, the defendants argue that it is the private use of the customers and the defendants are just providing some assistance to the customers. The court did not buy the argument. The court referred to a controversial Supreme Court judgment, which said that a Cablevision/Aereo like system is in violation of the Japanese copyright Act (TV Broadcasting Companies v. Japan Digital Kaden, 65-1 Minshu, 399, January 20, 2011). Based on the logic of the Supreme Court judgment, Tokyo district court found that as the important aspects of scanning is conducted by the scanning company, it is the defendants that conduct the copying, not the customers of the defendants. As a result, the court judged for the plaintiff.
There are two points that should be taken into account. First, the Supreme Court judgment, which the Tokyo district court relied upon, is not popular. If taken literary, the Supreme Court judgment is virtually saying that as the cloud service is the “copying” conducted by the cloud service providers, it is a copyright infringement. So, many scholars are arguing to limit the application of the Supreme Court judgment and some simply say that the judgment is wrong.
Another issue is that not all authors are hostile against the scanning business. I already reported the movement of friendly negotiation in my article. Also, recently, authors of one of the thickest books on Japanese Copyright (Commentary of the Copyright Law) explicitly admitted the users to use scanning business. So, even though this is a very bad news for the scanning companies, still, there are many scenarios on the future of the scanning business.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.