Law, Market and the Role of Courts in Regulating New Technologies and Online Services: Rokuraku Case and Television on Demand in Japan
32 Pages Posted: 3 Jul 2009 Last revised: 22 Oct 2009
Date Written: June 30, 2009
In the recent Rokuraku case, the Japanese Intellectual Property High Court found that a service provider did not infringe any exclusive rights of copyright or neighboring right holders when the provider stored for its customers devices which allowed them to record and transmit television broadcasts via the Internet for their private non-commercial purposes. At first glance heavily influenced by the recent trends in the strengthening of copyright protection worldwide in order to protect the interests of copyright and neighboring right holders, it might seem that the court erred in the case. The criticism of the court’s ruling is even stronger when similar cases decided in Japan and other jurisdictions, as well as possible supporting justifications, are taken into account.
This Article, however, argues that the solution adopted by the court which allows for the provision of such services is more beneficial to society in the long run than any other possible solution which would partially or completely restrain such activities. To strike a just and fair balance between the interests of all affected stakeholders, i.e. content providers, technology and service providers and consumers, all of the social and economic implications of the possible solutions in the case must be carefully taken into account. By examining three possible scenarios which strike a balance between the interests of affected stakeholders, this Article shows the soundness and appropriateness of the approach adopted by the Intellectual Property High Court in the case. In the end, any other decision by the court would have brought fewer benefits and imposed more costs to society as a whole.
Many of the social costs borne by stakeholders who are not parties to the respective lawsuits can be easily overlooked by courts in copyright infringement cases involving the provision of new dual-use technologies or online services. This Article therefore concludes that the courts should be cautious when they are asked by plaintiffs to extend the scope of copyright liability and to adjust national copyright laws to new threats to the private interests of copyright and neighboring right holders brought about by the introduction of new technologies and business models.
Keywords: indirect copyright liability, vicarious liability, television on demand, Japanese copyright law
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