Copyright and Related Rights Cases in the Field of Music in the Asia-Pacific Region Copyright and Related Rights Cases in the Field of Music in the Asia-Pacific Region Asia-Pacific the in Music of Field the in Cases Rights Related and Copyright 1 Copyright and Related Rights Cases in the Field of Music in the Asia-Pacific Region Asia-Pacific the in Music of Field the in Cases Rights Related and Copyright Disclaimer The views and opinions expressed in this Casebook are the sole responsibility of the author and do not necessarily reflect the views of the Secretariat of the World Intellectual Property Organization (WIPO) or its Member States. The information contained in the Casebook is not meant to be a substitute for professional legal advice. Its main purpose is to provide basic information on the subject matter. 2 Foreword In the digital era, copyright is facing unprecedented challenges. The widespread proliferation and innovative use of digital technologies has transformed the world in which copyright operates and revolutionized the way content is created, distributed, and consumed. The digital environment and its ever-evolving array of formats and platforms are spawning new ways of exploiting copyright and creating many new business opportunities. While it offers conditions which favor the diffusion and availability of content, it is making the task of extracting value from the use of these works more difficult. Traditional relationships are blurring and new ones are emerging which unsurprisingly offers fertile ground for legal battles over claims of infringement and abuse. This extensive compilation of landmark legal decisions relating to the music industry by courts in the Asia-Pacific region offers some very interesting insights into the different ways in which copyright and related rights are being handled in various jurisdictions. It is a useful reference for the many professionals who are seeking to navigate the music industry’s increasingly complex legal and commercial landscape. WIPO would like to express its gratitude to the Ministry of Culture, Sports and Tourism of the Republic of Korea for generously funding this project from the Korean Funds-in-Trust and for its continued commitment to supporting and promoting the use of IP in developing countries. My special thanks go to Professor Dr. Daniel Seng, Associate Professor, Faculty of Law, National University of Singapore, for his dedication and untiring efforts in putting together this informative collection. FRANCIS GURRY Director General World Intellectual Property Organization (WIPO) Copyright and Related Rights Cases in the Field of Music Asia-Pacific Region 3 Acknowledgment This Casebook, Copyright and Related Rights Cases in the Field of Music in the Asia and the Pacific Region, was commissioned by the World Intellectual Property Organization (WIPO) and prepared by Professor Daniel Seng, Associate Professor, Faculty of Law, National University of Singapore. This publication has been made possible through a generous contribution by the Ministry of Culture, Sports and Tourism of the Government of the Republic of Korea, which financed several projects, including this Casebook, intended to assist developing countries through the Korean Funds-in-Trust arrangement. WIPO notes with appreciation the contributions made by the following institutions and individuals in ensuring that the information contained in the publication is as accurate and up-to-date as possible: The Supreme Court of Japan and the Institute of Intellectual Property, Japan, for their kind permission to use and adapt the English translations of the Japanese judgments found in their electronic databases. The Supreme Court of the Republic of Korea for its kind permission to use and adapt the English translations of the Korean judgments found on the Supreme Court’s website. The Research Centre for the Legal System of Intellectual Property, Waseda University, for its permission to use and adapt the translated judgments from the Republic of Korea and Thailand. Judge Yuko Hirano from the Osaka District Court, Japan; Professor Justin Hughes from the Cardozo Law School, Yeshiva University; Professor Gyooho Lee from the College of Law, Chung-Ang University, Republic of Korea; and Mr. Shinji Niioka for sharing their works and input with Professor Daniel Seng. Ms. Leong May Seey, Mr. Benjamin Ng and Mr. Richard Sham, Asian Regional Office, International Federation of the Phonographic Industry, Hong Kong SAR, for sharing information about music copyright cases in the Asia-Pacific with Professor Daniel Seng. Messrs SungChun Yoon, Candra Darusman and Manisekaran Amasi of WIPO, for the valuable assistance provided for the publication. Copyright and Related Rights Cases in the Field of Music in the Asia-Pacific Region Asia-Pacific the in Music of Field the in Cases Rights Related and Copyright 4 Introduction The creation and composition of music has been with Man since the age of civilization. However it is the invention of the phonograph by Thomas Edison in 1877 that first made it possible to capture sounds and performances and reproduce them. Since then, both the method and media for making, distributing and propagating sound recordings have witnessed tremendous changes. Phonograms, vinyl records, tapes and compact discs (CDs) enable recordings to be mass-produced for sale. New methods of propagation such as radio, TV, cable diffusion and satellite broadcasts enable music and recordings to reach different people and to be transmitted and used in different ways. And in 1990s came the advent of the Internet. With it, the landscape of the music industry was irrevocably changed. But just as the metronome of technological progress has continued unabated, the laws of copyright and related rights have not stood still. It was in direct response to the challenges posed by phonograms, TV and satellites that the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961 (the Rome Convention) was accepted by members of the World Intellectual Property Organization. Likewise, it was in response to the challenges posed by the Internet that the global community got together to agree to the WIPO Internet Treaties (the WIPO Copyright Treaty 1996 and the WIPO Performances and Phonograms Treaty 1996). Nonetheless, the intractable tension between law and technology persists. Nowhere is this best seen than from developments in the Asia Pacific. It is home to two of the largest countries in the world by population (China and India), some of the most advanced economies (Australia, Japan, Republic of Korea, New Zealand and Singapore) and some of the most significant emerging markets (China, India, Malaysia and Thailand) in the world. It is equally significant many countries in this list have very substantial music industries and at the same time have well-developed or increasingly well-developed Internet infrastructure. Thus it comes as no surprise that music piracy remains an ongoing problem in many countries in Asia. As both the music and the Internet industries grow in tandem with these Asia-Pacific economies and as laws and legal infrastructure evolve, it is inevitable that the courts in these economies will grapple with licensing disputes and issues regarding the infringement of copyright and related rights in music and recordings. This publication attempts to collect some of these more important cases decided by courts in the Asia-Pacific, with December 2008 as the cut-off date for the selection of English translations of the cases from various sources. (Decisions made by administrative copyright tribunals or bodies are excluded for this edition of this publication.) The cases are organized by jurisdictions, sorted by date within each jurisdiction and tagged with keywords for ease of reference to the issues arising from infringement and licensing in the music industry. (The cases collected include cases which have been superseded by legislative changes.) The last chapter collects together all the other cases from these jurisdictions that deal with related issues in the movie and broadcasting industries. The aim of this publication as envisaged by WIPO is very modest: each case comes with a summary and a short commentary that is intended to provide the legislative and jurisprudential context for the decision Region Asia-Pacific the in Music of Field the in Cases Rights Related and Copyright and also refer the reader to similar or related decisions in other countries. While it is by no means exhaustive, it is hoped that this collection will be of interest to lawyers, judges, prosecutors, academics and students of copyright and intellectual property who are interested in developments in this area in the Asia-Pacific. 5 It is also hoped that by bringing all these resources in one book and in a common language and format, there is better appreciation for the diverse national and cultural backgrounds of these countries as well as the converging approaches and solutions towards the same issues and problems shown in the cases. This not insignificant endeavour is not possible on my efforts alone. My thanks are due to the Supreme Court of Japan, the Institute of Intellectual Property, Japan, the Supreme Court of the Republic of Korea, the Research Center for the Legal System of Intellectual Property, Waseda University and the International Federation of the Phonographic Industry, Asian Regional Office. I offer my personal thanks to Judge Yuko Hirano, Osaka District Court, Japan, Professor