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.

Chapter 1 of the 2017 Annual Report by the JPO does not surprise in too many ways. Quantity tends to be stable or declining, but the speed is up.

The patent filings to the JPO have continued to decline over the past ten years and is now at 318,721 filed in 2016 (Fig. 1-1-1), although in 2016 it received an all-time high number of PCT applications in 2016 (44,495; Fig. 1-1-2).

With the decline in quantity of applications to the JPO, it is gratifying when quality of examination is high. The JPO has succeeded in making its examination process a relatively fast one. Among these five major patent offices, the JPO has had the best record for moving applications through examination quickly to final resolution, in an average of 15.0 months (the Korean IPO is second fastest at 16.0 months, the EPO slowest at 26.9; Fig. 1-1-25).

The JPO has been aiming to provide top-quality IP prosecution service, and in this area it seems to be doing that. Using PPH and other accelerated examination systems based on JPO examination results may serve applicants well if examinations elsewhere is slower than expected.