Japan Supreme Court upholds damages for copying band scores not protected by copyright

Japan's Supreme Court on October 9 rejected an appeal by a Tokyo website company and upheld a Tokyo High Court ruling ordering it to pay damages to a sheet music publisher whose band scores it had copied and posted free online. The Second Petty Bench, presided over by Justice Mamoru Miura (三浦守), reached the decision unanimously among its four justices. Nikkei, Jiji Press, Asahi Shimbun and Yomiuri Shimbun put the award at about 169 million yen; Mainichi Shimbun gave about 170 million yen. [ 1 , 2 , 3 , 7 , 10 , 11 ]

Band scores, unlike the songs themselves, are not considered protected by copyright law, and the case turned on whether civil liability could arise from unauthorised use of such material, Sankei Shimbun reported. In 2011 the Supreme Court held that unauthorised use of things not protected by copyright law is not a tort unless there are "special circumstances." According to Mainichi, the bench set out for the first time that such circumstances exist when the use deviates from the scope of free competition and infringes business interests. Jiji Press and Yomiuri reported that it was the first time the Supreme Court had recognised civil liability for using material not protected by copyright. [ 1 , 3 , 4 , 7 , 11 ]

The plaintiff, Tokyo publisher Fearī (フェアリー), sells band scores transcribed by ear from recordings and pays usage fees to the music copyright society JASRAC. Band songs are often composed while playing in the recording studio, so complete scores often do not exist. According to Yomiuri, the site operator GLNET bought the publisher's scores and from December 2011 to June 2018 posted copied versions online, earning advertising revenue, while the publisher's sales fell sharply. Scores for 579 songs were copied. Asahi reported that the defendant had bought the scores since 2008 and closed the site in 2018 after the plaintiff asked it to stop. The publisher had sought 500 million yen. [ 1 , 3 , 7 , 10 , 11 ]

The bench said the defendant had avoided the heavy cost of producing scores, took customers from the plaintiff and was aware of the serious harm to the plaintiff's business, according to Jiji and Asahi. Sankei reported the bench found that publishing copied scores over at least about six and a half years "made it difficult to continue business by markedly unfair means." Jiji said the bench noted that if such conduct were allowed, publishers who transcribe music would be put at a marked disadvantage and fair competition could be harmed. [ 3 , 4 , 10 , 11 ]

The Tokyo District Court rejected the claim in September 2021, finding differences between the two sets of scores and not recognising copying. The Tokyo High Court found copying in June 2024 and ordered damages; Jiji said the notation match rate exceeded 90%, and Asahi said distinctive notations and errors matched. [ 1 , 3 , 7 , 10 ]

In a comment reported by Asahi, Fearī said that allowing such conduct would have dealt a heavy blow to the sheet music industry and led to a decline in Japanese music culture, and that it was glad it had sued after a trial spanning nine years. The defendant said it was "very regrettable" that its arguments were not accepted. Jiji and Asahi said the ruling could affect similar lawsuits, and Yomiuri, in commentary, linked it to disputes over generative AI. [ 3 , 10 , 11 ]