APAA e-Newsletter (Issue No. 33, February 2023)

Music Schools v. JASRAC – Is a Performance in a Music Class a Performance “heard by the public”?

Hatazoe Takahito, Sayagata IP (Japan)

Summary

The Supreme Court ruled that the performances by the teachers in the music class constitute an infringement of “performing rights” by the music school as an infringer, but ruled that the performances by the students do not infringe “performing rights”.

Background

In February 2017, it was reported that there was a dispute over copyright licensing between JASRAC and the major companies like Yamaha Music Foundation and Kawai Musical Instruments Manufacturing, which are operating music schools. The dispute was over whether performances by teachers or students in music schools are the subject of collecting license fees based on “performing rights” under Article 22 of Japanese Copyright Law.

After the dispute was reported, the companies operating music schools formed the Group for Protecting Music Education, and 251 companies participating in the Group filed a lawsuit before the Tokyo District Court, to confirm that JASRAC has no right to collect the license fees for performances of copyrighted works in music schools.

Legal Issues

Article 22 of the Copyright Law provides for “performing rights”, as set out below.

Article 22
The author shall have the exclusive right to perform his work publicly (“publicly” means for the purpose of making a work seen or heard directly by the public; the same shall apply hereinafter).

Conventionally, the term “public” under the Copyright Law is construed as “unspecified or large number of people”. In addition, in the conventional court decisions, even if the number of students in one lesson is small, students are said to be “unspecified” if anyone can join the school. However, the Group for Protecting Music Education said that “the relationship between teachers and students in music school is tightly coupled for educational purposes and changing of teachers and replacement of students are not planned,” and asserted that teachers and students at the music schools are not “public”.

There was another legal issue regarding “performing rights”. Under Article 22 of the Copyright Law, “performing rights” are limited “for the purpose of making a work seen or heard”. The Group for Protecting Music Education asserted the meaning of the phrase “for the purpose of making a work seen or heard” as “for the purpose of enjoying the artistic value of the copyrighted work”.

Tokyo District Court

On February 28, 2020, The Tokyo District Court, referring to the Karaoke Doctrine and the Supreme Court’s decision in the Rokuraku II case, ruled that the music school is a liable subject for the infringement caused by the performances by the teachers and the students in the music class, and rejected the arguments by the Group for Protecting Music Education.

Following this decision, the Group for Protecting Music Education appealed to the Intellectual Property High Court (IP High Court).

IP High Court

On March 19, 2021, the IP High Court ruled that the performances by the teachers in the music class constitute an infringement of “performing rights” by the music school as an infringer, for the following reasons (basically the same as those given by the Tokyo District Court).

  • The teachers are obligated to teach skills to the students based on the contract with the music school, and even if the teachers have certain discretion in fulfilling the obligation, the teachers do not have the freedom not to fulfill it. For this reason, it is said that the music school manages and controls the performance by the teachers and the music school is a liable subject for the infringement caused by the teachers’ performances in the music class.
  • Anyone can take lessons at the music school by applying and signing a course contract, and no attention is paid to the personal characteristics of the student in this contract. That is, the students at the music school are “public”.

On the other hand, the IP High Court, referring to the Supreme Court’s decision in the Rokuraku II case, ruled that the performances by the students in the music class do not infringe “performing rights”, for the following reasons:

  • The students’ performances are “for the purpose of making a work heard” by the teacher, not “for the purpose of making a work heard” by other students.
  • The music school does not manage or control the students’ performances, so the students are liable subjects for the students’ performances in the music class. Therefore, the music school does not infringe “performing rights”, by the students’ performances in the music class.
  • Also, the teachers are not “public” in the eyes of the students. Therefore, the students do not infringe “performing rights” by the students’ performances in the music class.
  • If it is assumed that the music school is a liable subject for the students’ performances in the music class, the subject of the performances (student = music school) and the audience of the performances (teacher = music school) will coincide. Since the “public” in Article 22 of the Copyright Act should be interpreted as referring to a person different from the subject of performance, the students’ performances do not infringe “performing rights” even under this assumption.

Following this ruling, both sides of the case appealed to the Supreme Court.

Supreme Court

The Supreme Court decided to hold arguments in September 2022 to hear arguments from both sides regarding the student’s performances. This raised the possibility that the IP High Court’s decision on the student’s performances could be overturned. Ultimately, however, on October 24, 2022, the Supreme Court ruled to uphold the decision by the IP High Court and dismissed the appeals by both sides, stating the following criteria:

In determining the entity that makes use of a musical work in the form of a performance, it is appropriate to consider various factors such as the purpose and manner of the performance, and the content and degree of involvement in the performance.

The criteria described above are basically based on the same concept as the criteria in the Rokuraku II case and are evaluated as restraining the application of the Karaoke Doctrine, which has been used to determine the entity of the use of copyrighted works.

Conclusion

This decision by the Supreme Court is expected to have an impact on the royalty rates for the license fees which will be collected by JASRAC from music schools.