Navigating Indirect Copyright Liability in Japan: When Can You Be Held Responsible for Others' Infringement?

In the interconnected digital world, services and platforms often become conduits for activities carried out by their users. When these user activities involve copyright infringement, a critical question arises: to what extent can the service provider or intermediary be held liable for infringements committed by others? Unlike the United States, which has specific statutory frameworks like the Digital Millennium Copyright Act (DMCA) addressing certain aspects of intermediary liability, Japanese copyright law (著作権法 - Chosakuken-hō) does not contain explicit provisions for "secondary" or "indirect" copyright liability. Instead, responsibility for third-party infringements is determined through the application of general tort law principles and, more significantly, through a series of evolving judicial doctrines developed by Japanese courts.

This article explores the key legal theories under which a party in Japan might be held liable for copyright infringements committed by others, with a particular focus on their implications for online service providers (OSPs), platform operators, and other businesses whose services could potentially be used for infringing activities.

The Foundation: Joint Unlawful Acts (Joint Tortfeasor Liability)

The primary statutory basis for holding a party liable for harm caused by another's unlawful act is found in Article 719 of the Japanese Civil Code (民法 - Minpō), which deals with "Joint Unlawful Acts" (共同不法行為 - kyōdō fuhō kōi). This article can be applied to copyright infringement in two main ways:

1. Joint Participation: If multiple persons jointly commit an unlawful act (including copyright infringement), they are jointly and severally liable for the damages caused.
2. Aiding or Instigating: Even if a person does not directly commit the infringing act, if they aid or instigate another to commit it, they are also considered a joint tortfeasor and can be held liable for damages.

To establish liability for aiding or instigating copyright infringement under Article 719, the following elements typically need to be proven:

• An act of direct copyright infringement by a third party.
• An act of aiding (assisting, facilitating) or instigating (inducing, encouraging) that direct infringement by the defendant.
• A causal link between the defendant's aiding/instigating act and the direct infringement and resulting damages.
• Intent or negligence on the part of the defendant with respect to their own aiding/instigating act and its connection to the primary infringement.

Example: The Supreme Court decision in the Night Pub G7 case (March 2, 2001) held a company that leased karaoke equipment to a pub liable as a joint tortfeasor for aiding the pub's copyright infringement (unlicensed public performance of music by customers). The leasing company knew the equipment would be used for such performances and profited from it.

Limitations: Traditionally, liability under Article 719 Civil Code primarily supports claims for damages. It is generally more difficult to obtain an injunction against an aider or abettor solely on this basis, as injunctive relief in copyright (Article 112 of the Copyright Act) is directed at those who infringe or are likely to infringe. Furthermore, this theory requires an underlying act of direct copyright infringement by the primary actor. If the primary actor's conduct is not infringing (e.g., it falls under a copyright limitation), then there is no unlawful act to aid or abet.

Judicial Innovations: Expanding Grounds for Responsibility

Recognizing the limitations of traditional joint tortfeasor liability, especially for obtaining injunctive relief and addressing nuanced online scenarios, Japanese courts have developed specific doctrines that can, in certain circumstances, attribute responsibility more directly to intermediaries.

1. The "Karaoke Doctrine" (カラオケ法理 - karaoke hōri): Treating the Intermediary as a Direct Infringer

This influential doctrine originated from the Supreme Court case Club Cat's Eye (March 15, 1988). In this landmark decision, the operator of a karaoke bar was held directly liable for copyright infringement (public performance of musical works) based on the singing activities of its customers. The Court established a two-prong test for attributing direct liability to the establishment:

1. Management and Control (管理ないし支配要件 - kanri naishi shihai yōken): The establishment must manage and control the customers' infringing acts. This could be through providing the means for infringement (karaoke equipment and song selections), overseeing the environment where infringement occurs, and having the ability to stop or control it.
2. Deriving Profit (利益要件 - rieki yōken): The establishment must be deriving profit from the customers' infringing acts. The customers' singing was integral to the karaoke bar's business and appeal.

If these two conditions are met, the intermediary (the karaoke bar operator) is treated as if they themselves are performing the infringing act (in this case, the public performance).

• "Transformation of Lawful Acts into Unlawful Acts" (適法行為の違法行為転換機能 - tekihō kōi no ihō kōi tenkan kinō): A powerful aspect of the Karaoke Doctrine is its ability to find the intermediary liable even if the direct user's act would not, in itself, be infringing. For example, an individual customer singing in a karaoke bar might be engaging in a private performance, or if the bar were hypothetically non-profit and free, their act might fall under a copyright limitation like Article 38(1) (non-profit, free public performance). However, the karaoke bar operator, by commercially managing and profiting from these cumulative acts, is deemed the direct infringer.
• Remedies: This doctrine allows for both damages and injunctive relief against the intermediary.

2. The "Comprehensive Balancing Doctrine" (総合衡量法理 - sōgō kōryō hōri): Identifying the True "Subject" of Infringement

More recently, particularly in cases involving online services, the Supreme Court has refined and broadened the approach to determining who is the legally responsible "subject" (主体 - shutai) of a copyright-implicating act. This is often referred to as the "comprehensive balancing doctrine."

Key cases establishing this approach are Maneki TV (Supreme Court, January 18, 2011) and Rokuraku (Supreme Court, January 20, 2011). These cases involved services that allowed users to remotely access and view or record television broadcasts over the internet. Despite users initiating the requests, the Supreme Court found the service providers to be the direct infringers (public transmitters in Maneki TV, reproducers in Rokuraku).

The courts undertake a comprehensive assessment of various factors to determine who should be considered the "subject" of the infringing act, including:

• Who provides and manages the essential facilities and technology for the act to occur?
• Who has overall control over the system and its operation?
• Whose actions are pivotal or indispensable for the realization of the reproduction or transmission?
• Who profits from the overall service that incorporates the infringing acts?

In Maneki TV and Rokuraku, the service providers supplied the TV antennas, receiving equipment, servers, and the system that captured and retransmitted broadcast signals or recorded them at the user's remote request. The Supreme Court emphasized that the providers' active role in setting up and maintaining this infrastructure, and in making the copyrighted content (broadcast signals) available as input to their systems, made them the entities performing the public transmission or reproduction.

Like the Karaoke Doctrine, the comprehensive balancing doctrine can also result in a "transformation" where the service provider is held directly liable for an overall infringing service, even if individual user actions, viewed in isolation, might appear private or non-infringing.

This doctrine is more flexible than the Karaoke Doctrine's two prongs but can also lead to less predictability, as the outcome depends on a holistic evaluation of the specific service's architecture and the provider's role. A key factor often appears to be whether the service provider is not just furnishing a tool, but is also instrumental in providing or channelling the copyrighted content itself.

3. Extending Injunctive Relief to Facilitators (A Developing Area)

Some lower court decisions and academic discussions have explored the possibility of interpreting Article 112 of the Copyright Act (which grants the right to demand cessation of infringement) more broadly, or applying it by analogy, to reach parties whose actions are "inevitably linked" to or substantially facilitate direct infringement, even if they don't fit neatly into the Karaoke or comprehensive balancing doctrines as direct infringers. Cases like Hit One (Osaka District Court, February 13, 2003, involving a karaoke data provider) and the initial District Court ruling in Sentaku Miroku (Select & Record) (Osaka District Court, October 24, 2005, concerning a TV recording system vendor) have touched upon this. However, this is not as firmly established as the Supreme Court-led doctrines.

Application to Specific Online Scenarios

These doctrines have been applied, or their application considered, in various online contexts:

• Peer-to-Peer (P2P) File-Sharing Software: The criminal case against the developer of the Winny P2P software (Supreme Court Decision, December 19, 2011) resulted in an acquittal on charges of aiding copyright infringement, primarily due to a lack of specific intent to cause infringement, even though the software was widely used for illegal file sharing. For civil liability, the mere development and distribution of P2P software that has substantial non-infringing uses is unlikely to make the developer a direct infringer under the comprehensive balancing doctrine, nor easily liable for aiding without more direct involvement in promoting infringement.
• Cloud Storage Services: If a cloud storage service passively provides storage space for user-uploaded content, and the user maintains control over that content, the service provider is generally less likely to be deemed the "subject" of reproduction or public transmission under the comprehensive balancing doctrine (as they are not typically providing the copyrighted content input in the Maneki TV/Rokuraku sense). However, liability could arise if the service actively facilitates infringement, offers tools specifically designed for infringement, or has a high degree of control and knowledge combined with inaction. The Myuta case (Tokyo District Court, May 25, 2007) found a service provider liable where it did more than passive storage; it converted user-supplied CD audio tracks into a format for mobile phones and managed their delivery, thereby playing a pivotal role in making the works transmittable in that new format.
• Online Bulletin Boards (BBS), Social Media, and User-Generated Content (UGC) Platforms: The liability of platform operators for infringing content posted by users is a major area of concern. The Tokyo High Court in the Fanbook on 2-channel case (March 3, 2005) held the operator of a large anonymous BBS liable for public transmission infringement for failing to remove obviously infringing posts after receiving notice from the copyright holder. This suggests that platform operators with control over content and knowledge of specific infringements may have a duty to act to avoid direct liability (potentially under a theory of liability by omission, or as the "subject" under comprehensive balancing due to their control over the platform where transmissions occur).

The Provider Liability Limitation Act (PLALA)

Japan has a specific law, the "Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders" (特定電気通信役務提供者の損害賠償責任の制限及び発信者情報の開示に関する法律 - commonly known as the Provider Liability Limitation Act or PLALA).

• Limitation of Damages: PLALA provides a "safe harbor" that can limit the damages liability of ISPs and OSPs for infringements committed by their users, provided certain conditions are met. These conditions typically involve the provider not having knowledge of the infringement, not deriving direct financial benefit from it where they have the right and ability to control it, and complying with notice-and-takedown-like procedures.
• Does Not Govern Injunctive Relief: Crucially, PLALA primarily addresses liability for monetary damages. It does not directly govern claims for injunctive relief (i.e., orders to stop or prevent infringement). The availability of injunctions against OSPs for user-generated infringements is still determined based on the copyright law principles and judicial doctrines discussed above.

Brief Comparison with U.S. Secondary Liability Doctrines

U.S. copyright law has well-established doctrines for secondary liability:

• Vicarious Infringement: Arises when a defendant has the right and ability to supervise or control the direct infringer's activities and receives a direct financial benefit from the infringement.
• Contributory Infringement: Occurs when a defendant, with knowledge of the infringing activity, induces, causes, or materially contributes to the direct infringement.
• Inducement Liability: Based on the Supreme Court's Grokster decision, liability can arise if a party distributes a device or service with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.

While the underlying goals are similar—to address situations where a party facilitates or profits from another's infringement—the specific tests and statutory bases differ. Japanese doctrines like the Karaoke Doctrine and Comprehensive Balancing often frame the intermediary as a direct infringer by legal construction, whereas U.S. doctrines typically maintain a distinction between direct and secondary liability.

Conclusion

Navigating potential liability for third-party copyright infringement in Japan requires a careful understanding of how general tort principles and specific judicial doctrines like the Karaoke Doctrine and the Comprehensive Balancing Doctrine are applied. Unlike jurisdictions with detailed statutory safe harbors for various intermediary activities, Japan relies more on case-by-case analysis. For online service providers, platform operators, and any business whose services might be used by others, this means that the degree of control over user activity, the provision of essential means for infringement (especially the content itself), knowledge of infringing activities, and the derivation of profit are all critical factors. While the Provider Liability Limitation Act offers some protection regarding damages, the risk of injunctive relief and liability under these evolving judicial standards necessitates proactive measures to discourage and address copyright infringement by users.