本間忠良 衝撃の新刊 知的財産権と独占禁止法−−反独占の思想と戦略
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経済法あてはめ演習60選（日本語）Antimonopoly Act Exercise 60 Cases
情報革命についてのエッセイとゴシップ（日本語） Essays and News on Information Revolution
論文とエッセイ（日本語）Theses and Essays
years, major Japanese sound recording companies (hereinafter “Japanese
labels”) have been trying to establish an importation right (a right to
prohibit importation) under Japanese Copyright Law, against music CDs made in
other Asian countries under their license.
They are eager to license other Asian countries for local production of
Japanese popular music (“J-Pop”) CDs that are becoming more and more popular
there recent years, but do not want those CDs to return to Japan at an import
price far lower than their Japanese price.
Generally speaking, a J-Pop album costs $25 a piece in Japan, while the
same album made under license in other Asian countries costs less than $10.
It is a
common business practice to obligate local licensees not to export their CDs to
Japan, but Japanese labels do not seem to trust their licensees to comply with
their contractual obligations including to bind their customers not to export to
Japan (that may cause some concern to their local competition authorities).
Or, it is suspected that they may have a far more ambitious
objective—to stop importation of all foreign-made music CDs to Japan
across-the-board as more fully discussed later.
labels allege that they are just imitating their American and European
counterparts, but international situation surrounding this issue is not so
602 (a) of the U.S. Copyright Act provides copyright holders with a right to
import copyrighted articles. This
right, however, is subject to the ‘first-sale doctrine’ provided in Section
109 (a) and the Federal Supreme Court decision in ‘Quality King’ case (1)
applied this doctrine to this case and allowed return importation
(“backflow”) of a copyrighted article first sold in the U.S.
the importation of copyrighted articles first sold abroad with the consent of
the copyright holder is yet to be decided, the direction is clear—more and
more borderless in deciding whether or not to exercise copyright (2).
More than anything else, price of music CDs in the U.S. is so low
(about $12 a piece) that no one may be seriously concerned about the backflow of
foreign CDs made under U.S. license.
the EU, the principle of free movement of goods whether or not copyrighted is
firmly adhered to under EC Treaty. Although
there is a Community Directive requiring consent of the copyright holder for the
exhaustion of his national distribution right (3), the Community free-movement
principle supersedes any such private exercise of national distribution right.
And although there are a couple of Community court decisions denying to
apply free-movement principle to sound recording products imported from outside
the Community (4), their validity is now susceptible in light of the
non-discrimination provisions of the TRIPS Agreement.
labels allege that 65 countries of the world have a legal device, somehow or
other, to prohibit backflow of music CDs, by way either of importation right,
distribution right or ‘presumed infringement’ (as discussed later).
This allegation is not only an overstatement in that it counts each of
EU’s 15 (or 25 as of May, 2004) member states forming a single market under
the free-movement-of-goods principle, but also is a logical suicide:
Japanese labels want to imitate the EU, they should allow free trade between
Japan and other Asian countries and at the same time should exclude import from
the U.S. and the EU. What they want
to do actually is its exact opposite: selectively excluding Asian products and
allowing import from the U.S. and the EU. They
are against the idea of the East Asian Community agreed upon during the Japan-ASEAN
summit conference held in Tokyo in December 2003.
of growing oppositions, Japanese labels have since stepped back considerably
from their original ambition of importation right as part of copyright
(“importation right” in narrow meaning) to a more modest proposal for the
‘presumed infringement’ of importation of foreign-made music CDs that are
under contractual obligation not to export to Japan (“importation right” in
113 of Japanese Copyright Law prohibits, at Section 1, importation of goods that
may presumably have violated Japanese Copyright Law if produced in Japan at the
time of importation. For example,
importation of pirated goods does not technically violate Japanese
Copyright Law because unauthorized copying has occurred outside Japanese
territory. However, Article 113
protects the economic interests of copyright holders from the importation of
pirated goods, although not as a copyright infringement (5).
2004, the Ministry of Education, Culture and Science introduced a bill at the
Diet to amend Article 113 of Japanese Copyright Law. The bill passed the Diet in June. The Amendment has taken effect as of January 1, 2005.
text of the Amendment reads as follows:
113, Section 5: Where a copyright-
or neighboring right-holder who is publishing himself or having others publish
commercial musical records purported for distribution within Japan (hereinafter
“Japan Distribution Records”) is publishing or having others publish
identical commercial musical records purported for distribution solely outside
Japan (hereinafter “Foreign Distribution Records”), an act of, knowingly, importing such Foreign Distribution Records for
distribution in Japan, distributing the same in Japan, or possessing the same
for the purpose of distribution in Japan is regarded as an infringement of such
copyright or neighboring right, only in case the profit expected for such
copyright- or neighboring right-holder from the publishing of such Japan
Distribution Records is to be unreasonably undermined due to distribution in Japan
of such Foreign Distribution Records. [Underline added].
amendment gives copyright- and neighboring right-holders, Japanese or foreign, a
power to stop, under certain conditions, importation of all musical records made
in foreign countries including the U.S. and the EU under license from the
holder, Japanese or foreign, of Japanese copyright or neighboring right.
This power is now far stronger than is necessary to stop backflow from
Asian countries as envisaged by Japanese labels at first.
the necessary outcome of the non-discrimination principle of Berne Convention.
for example, one of the American Five Majors, who owns a copyright/neighboring
right in Japan and is making identical CDs both in the U.S. and Japan, decides
to divide the two geographical markets to maximize its joint profit, it will
undoubtedly stop parallel import of CDs made in the U.S. into Japan under the
I have a couple of questions in this amendment:
question is whether this across-the-board import restriction is consistent with
As regards the
importation right under copyright, neither the Uruguay Round negotiation nor the
WIPO copyright/performers’ right conference could reach a consensus despite
ardent proposals made by the USTR, to which Japan expressly objected.
The absence of international consensus in this matter poses difficult
questions especially in light of WTO/GATT.
Article XI of GATT prohibits quantitative restriction of goods. Among many exceptions to this principle, Article XX(d) permits an import restriction “necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement [such as competition and intellectual property laws].” In order to rescue the Article 113, Section 5 with this exception, Japan should establish that it is 'necessary' to secure compliance with Japanese Copyright Law.
In comparison, although pirated goods do not infringe
national intellectual property rights because unauthorized copying has occurred
outside the national territory, as mentioned above, note 1 (b) of Article 51 of the TRIPS Agreement
defines pirated goods as those which would have
constituted an infringement of a copyright or neighboring right under the law
of the country of importation. Based
on this authorization, Article 113, Section 1 of Japanese Copyright Law
presumes pirated goods as infringing and prohibits their importation.
in WTO/GATT context.
defines pirated goods as those which would have constituted an infringement of a copyright or neighboring right under the law of the country of importation. Based on this authorization, Article 113, Section 1 of Japanese Copyright Law presumes pirated goods as infringing and prohibits their importation.For parallel import restriction of copyrighted musical CDs, however, there is no such authorization, express or implied, within WTO/GATT or anywhere else. Parallel import good is entirely different from pirated good
in WTO/GATT context.
(d) only exempts an import restriction measure necessary to secure
compliance with domestic laws or regulations.
The term ‘necessary’ has been interpreted by GATT panels almost as severe as the word
No one may be
convinced that the restriction of parallel import of genuine musical CDs is
really ‘necessary’ to secure sustained creation of art that is the ultimate
purpose of any copyright law.
second question is whether the discrimination currently contemplated by Japanese
labels between CDs made in Asian countries and in the U.S./EU is consistent with
Japanese customs adopts, based on an interpretation of the term ‘unreasonably’
proposed by Japanese labels, such a numerical threshold calculated from the difference in
expected profits from different national markets as to effectively stop backflow
from Asian countries while permitting importation of CDs from the U.S./EU, it is
against many provisions of WTO/GATT:
text (chapeau) of GATT Article XX reads: The
exemption given in Section (d) is ‘subject to the requirement that such
measures are not applied in a manner which would constitute a means of arbitrary
or unjustifiable discrimination between countries where the same conditions
prevail...’ A numerical threshold
set at such a level as to effectively stop backflow form Asian countries while
permitting importation from the U.S./EU is nothing but an ‘arbitrary and
discrimination. Both geographical
areas are in the same condition in making CDs under license for Japanese
copyright or neighboring right.
Article I and TRIPS Article 4 would also apply.
me consider the issue from a different point of view. Selling a product at a higher price within a closed home
market than in an open foreign market is a symptom of dumping.
Although what Japanese labels are intending is not a typical dumping
between domestic and export goods but a dumping between domestic goods and
foreign-made goods under license, some of Japan’s Asian trade partners are now
having an advanced trade regulations that may cover such non-typical dumping.
moment Korea has opened its heretofore-closed market to Japan’s pop music,
Japan is going to close its market to all foreign-made music CDs.
Because other media such as DVDs will follow this move, Japan will
certainly fall into a cultural autism that may last for indefinite time period.
(1) Quality King Distributors,
Inc. v. L'Anza Research International, Inc., 118 S. Ct. 1125 (Mar. 9, 1998).
(2) Quality King decision warns in its dicta not to extend its reasoning to
‘licensees’ or to ‘copies lawfully made under foreign law’, it does not
deny such interpretation of Section 109 (a) at all.
(3) OJ L167, 22/06/2001.
(4) EMI v. CBS,  2 CMLR
v. Harlequin Record Shops  ECR 329 (1982).
(5) It is a consensus among Japanese copyright experts that “presumed
infringement” is not an exercise of copyright.
See, e.g., Hiroshi Saito, COPYRIGHT LAW, 3rd ed. (Ichiryuusha,
1994) at 300 and Handa & Monya, COPYRIGHT KNOW-HOW, 5th ed. (Yuhikaku, 1995)
(6) “Pirated copyright goods” shall mean
any goods which are copies made without the consent of the right holder or
person duly authorized by the right holder in the country of production and
which are made directly or indirectly from an article where the making of that
copy would have constituted an infringement of a copyright or a related right
under the law of the country of importation.
(7) GATT Panel Report in Akzo case (L/6439-36S/345, November7, 1989).