Representatives for a number of major music schools, particularly those (like Yamaha) involved in sale of musical instruments, and JASRAC (Japanese Society for Rights of Authors, Composers and Publishers) spoke at initial hearings in the Tokyo District Court on September 6, 2017.

The music schools asserted that music practiced in a lesson is not truly intended for public hearing, which is how the Copyright Law defines a copyrighted “performance.” JASRAC insists that playing songs to which it has the license, for another person and for a profit, is covered by copyright and that musicians deserve their fair share from such “performances,” too.

The music schools appeal to the fear that the usage fees would harm the progress of music learning. Musicians have joined in this chorus. For example, pop star Utada Hikaru has “tweeted” that she wants music teachers and students to use her songs freely.

In broader perspective, Yamaha and other schools are not sole targets of a tightening of copyright enforcement on JASRAC’s part. Dance studios, karaoke halls, and fitness clubs have already been required to pay fees for the copyrighted songs they play. JASRAC sees the large music schools as the next target in a line of institutions that have been using copyrighted music unfairly until now. The courts will need to determine whether JASRAC is keeping in line with the Copyright Act in proceeding with this course, or if the schools claim legitimately to be substantively different from those other businesses.

JASRAC, Japanese Society for Rights of Authors, Composers and Publishers, is again facing criticism. Recently it has received pushback from music schools and other establishments that use music, but now complaints from a musician supposed to benefit from JASRAC’s monitoring of music use also is broadcasting his complaints that JASRAC is not clearly or appropriately giving royalties.

JASRAC tries to take a sampling of establishments like karaoke bars and music live houses and distribute general use fees (charged as flat rates to such establishments) as royalties to artists based on how much their songs were performed in the samplings. Rock band drummer Funky Sueyoshi has published his disappointment that he has received none of the royalties in spite of all the performing he had done over ten years and the procedure for distributions is “opaque.”

As complaints against JASRAC become public, disgruntlement with it may lead to more people choosing alternative ways of protecting their copyrights. However, for the many people who have entrusted their music to JASRAC’s oversight or who use music guarded by it, the problems remain.

It is difficult to monitor uses of any particular song and to apply copyright principles to it. The sampling method that JASRAC uses, unless it were to implement some universal music checking system, is not utterly ridiculous (though maybe it should be refined and expanded). The fact remains that many songwriters and musicians agree to let JASRAC monitor and charge for use of their songs. Maybe musicians, music-using establishments, and licensing groups need to negotiate a way free from JASRAC while understanding the pressures JASRAC faces. Musicians entering the Japanese market will want to clarify how JASRAC may be involved in playing or performing of their music in Japan. We would hope that going beyond the challenges of today, good music will flourish, not wither, in Japan.

On May 23, 2017, the Japanese Intellectual Property High Court (IPHC) ruled in favor of Keisen’s client Garmin in a patent infringement claim brought by Pioneer (Case No H28(2016)(NE)10096). The IPHC not only unanimously rejected all of Pioneer’s infringement claims but also rejected Pioneer’s claims concerning the doctrine of equivalents and asserted that Pioneer’s claims regarding operational features of Pioneer devices are in fact well-known technology.

Keisen also prevailed at the IPHC without disclosing any proprietary code or underlying algorithms for our client Garmin’s devices. Instead, Keisen used a strategy of actual video field tests supported by affidavits and statements from Garmin engineers.

Keisen previously prevailed in the Tokyo District Court in 2016 under the same strategy, again without disclosing any trade secrets or proprietary algorithms.

Garmin is a leading developer and manufacturer of GPS and wearable technology, and our relationship with Garmin stems from our long commitment to English language facing service and representing non-Japanese clients in Japan.

Interviews with examiners are a vital tool during patent prosecution in Japan–able to make the difference between moving toward allowance and receiving a rejection. They have not always, however, been easily arranged for overseas applicants.

For the applicant wishing to explain directly the patentability of their invention to an Examiner, until recently in-person interviews conducted at the Japan Patent Office were the only practical recourse. Under limited circumstances, the JPO allowed video conference interviews with Examiners. Although it technically allowed this, the JPO neither advertised nor encouraged video conferences, and interviews could only be conducted at certain government facilities. Perhaps seeking to redress this inconvenience, the JPO has recently lifted the restriction regarding location, and interviews with JPO Examiners now may be conducted from anywhere in the world.　

In order to hold a video conference interview with the Examiner, the Japanese attorney of record must also attend and lead the video interview with the Applicant. (At Keisen Associates, our attorneys are able to travel to meet with our clients interested in participating in a video conference interview and provide interpretation to ensure the optimal outcome.)