New services are developed and provided to keep pace with the ever-increasing usage and importance of the internet. One such service is the online distribution of TV programs. This service typically entails a provider (an internet venture company, in many cases) using servers for the recording or real-time streaming of TV programs. The provider then transmits such data through the internet to users who view the TV programs on their individual PCs. As might be expected, the provider, due to the provision of these services, may face copyright infringement claims by the copyright owners of such TV programs.

On June 20, 2008 the Tokyo District Court rendered a decision regarding real-time streaming of TV programs (“Maneki-TV”). The Court ruled
that such service did not infringe the copyrights. Unlike all previous similar cases, this is the only one to be ruled as non-infringement.

The main issue in copyright infringement cases regarding such services is hether, when looking at the entirety of the infringement activities, one who substantially controlled the infringement activities should be deemed the infringer even if it did not physically commit such activities. This standard was established by the Supreme Court on March 15, 1988 in the “Club Cat’s Eye Case”. Therefore, if it is shown that the party did not substantially control the infringement activities, such party will not be held to have infringed the copyrights.

In Maneki-TV, there were several facts that lent themselves to the argument that the provider did not substantially control the infringement activities.
Although the server was housed in the provider's office, which may lead to the conclusion that the provider controlled the transmission, the users actually purchased and owned the server. Importantly, the server used was commercially available and no special software was installed thereon. Further, the server and the user were engaged entirely in one-to-one correspondence whereby the data transmitted from a certain server could be received by only one corresponding PC. Therefore, this was not a public transmission server. Moreover, the access to the server by the user did not involve any certification proceedings provided by the provider; rather, each user could directly access the server through the internet. Considering the lack of control by the provider and any public nature of the transmission server, the Court determined that the controlling entities were the users. Hence the Court ruled that the provider
did not infringe the copyrights.

Regarding the service whereby recorded TV programs are transmitted, there are no precedent rulings finding non-infringement of the copyrights.   In prior cases the providers substantially controlled the TV recording and the transmission thereof and were considered to be "controlling" the infringing
activities. However, in light of the Maneki-TV decision, if a provider can build a similar system involving the usage of a commercially available server, the users’ ownership of the servers, one-to-one correspondence, and no certification
proceedings for the access to the server, such recording and transmission service may be determined to be non-infringement of the copyrights.

 Anderson Mori & Tomotsune Japan IP Newsletter