Who's Liable for Infringing Music Performances in a Live Venue or Unauthorized Radio Re-transmissions in Japan?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

The ubiquitous nature of music in modern life—from live concerts to internet radio streams—brings with it complex questions of copyright liability. When copyrighted music is performed without authorization in a live venue, or when radio broadcasts containing such music are retransmitted over the internet without permission, who is legally responsible under Japanese law? Is it only the musicians playing the songs or the individual setting up the stream? Or can the businesses that provide the platforms or means for these activities, such as venue owners or service providers, also be held directly liable for copyright infringement?

Japanese courts have developed specific doctrines to address these situations, often looking beyond the direct physical actor to attribute responsibility to those who manage, control, and profit from such uses.

Liability for Infringing Live Music Performances: The Venue Owner's Role

The Japanese Copyright Act grants copyright holders the exclusive right of public performance (ensō ken) for their musical works (Article 22). This means that performing copyrighted music live to an audience generally requires a license. While the musicians or bands playing the music are direct performers, a crucial question is whether the owner or operator of the live music venue can also be considered a "performer" (ensō no shutai – subject of performance) and thus be held directly liable for infringing performances by the artists they host.

Beyond the "Hands and Feet" Theory

If the performers are direct employees of the venue, acting under its explicit instructions (the "hands and feet" theory, or teashi ron), the venue owner is clearly the performing entity. However, most live music venues host independent bands or artists who have significant autonomy over their repertoire. In these more common scenarios, Japanese courts have looked to broader principles to determine venue owner liability, most notably the "Karaoke Doctrine."

The "Karaoke Doctrine" (Karaoke Hōri) and its Evolution

The foundational case for this line of reasoning is the Supreme Court's judgment in the Club Cats Eye Case (March 15, 1988). This case involved karaoke bars where patrons sang to recorded accompaniments. The Supreme Court held that the bar operator could be deemed the legal subject of the patrons' singing (which constitutes a "performance"). The key factors leading to this conclusion were:

  1. Management and Control: The operator managed the karaoke equipment, provided the song selections (via tapes/discs), and generally controlled the environment in which the singing took place, often with staff encouraging patrons.
  2. Deriving Business Profit: The operator profited from the overall karaoke atmosphere, which attracted customers and increased sales of food and beverages.

This "Karaoke Doctrine"—attributing the act of performance to an entity that manages, controls, and profits from it, even if they are not physically performing—has been extended beyond karaoke bars.

Application to Live Music Venues:
The application of these principles to live music venues, which host independent bands, is more nuanced.

  • In the Desafinador Case (Osaka High Court, September 30, 2008), a restaurant/cafe that merely provided its space for external musicians to hold live performances was found not to be the performing entity. In that case, the musicians handled their own ticketing, set lists, and kept all ticket revenue, while the venue only sold food and drinks to attendees as a secondary activity and had minimal involvement in the performance itself. The court found a lack of sufficient management/control by the venue and insufficient direct profit derived from the performance.
  • More recently, in a case involving a live music venue that provided sound equipment, advertised the performance schedule, and derived revenue from mandatory drink ticket sales for attendees (even if bands kept separate ticket revenue), the Intellectual Property High Court (Judgment of October 19, 2016, often referred to as the Live House Case) took a different approach. While referencing the Club Cats Eye factors, the court also appeared to draw on reasoning from the Rokuraku II case (Supreme Court, January 20, 2011 ), which concerned liability for reproduction via a TV recording service. The IP High Court in the Live House Case considered whether the venue owner, beyond merely providing an environment, was performing "pivotal acts in the realization of the performance" under its management and control. The court found the venue owner liable. Legal commentary has questioned whether the acts cited by the court (providing standard equipment, basic promotion, and profiting from tied-in F&B sales) truly rise to the level of "pivotal acts" that directly cause the performance in the same way as the service provider's actions in Rokuraku II caused reproductions.

Consider a venue owner who provides the stage, basic sound and lighting equipment, and drums/amps for bands to use. The venue doesn't charge the bands a fee but makes its profit from a mandatory drink ticket purchased by every attendee. The venue owner doesn't control the bands' song choices or their direct ticket sales (if any, which the bands keep). However, the venue does promote the shows on its website and with flyers. In such a scenario, drawing from the evolving case law, Japanese courts might well find the venue owner to be a normative "performer." The provision of essential infrastructure, active promotion (even if just scheduling), and a business model directly reliant on attracting an audience for the performances (via the drink tickets) could be seen as sufficient management, control, and profiting from the performances to attribute liability.

If the venue owner is deemed a normative performer, and the musical works performed by the hosted bands are copyrighted and performed without proper licenses from copyright holders or their collective management organizations, the venue owner directly infringes the public performance right. They can then be subject to injunctions to stop further unauthorized performances and claims for damages.

Unauthorized Internet Retransmission of Radio Broadcasts: Identifying the "Maker Available"

The digital age brings another layer of complexity with internet retransmissions of broadcast content. Suppose a company sets up a service allowing its employees in a remote office to listen to a community FM radio station from the company's headquarters city via the internet. The company purchases devices—a base unit at headquarters receives the radio waves and streams them, and remote units allow employees to select and listen. The company manages the base units. If this retransmission is unauthorized, who is liable?

Relevant Rights at Stake:
Two main sets of rights are implicated:

  1. Copyright in the Musical Works: The musical compositions and recordings played on the radio are copyrighted. Their unauthorized transmission to the public, including making them available for on-demand streaming, infringes the copyright holder's Right of Public Transmission (Article 23(1) of the Copyright Act), which includes the Right of Making Available for Transmission.
  2. Broadcaster's Neighboring Rights: Broadcasters have their own neighboring rights in their broadcasts. Article 99-2 grants broadcasters the exclusive right to make their broadcasts transmittable (i.e., available for transmission) over the internet.

The Maneki TV Supreme Court Precedent:
The Supreme Court of Japan provided crucial guidance in the Maneki TV Case (Judgment of January 18, 2011). This case involved a service where a company hosted user-owned "Slingbox-type" devices (base units) that received terrestrial TV broadcasts and streamed them over the internet to the users' specific remote viewing devices (e.g., PCs or mobile phones).

The Supreme Court held that the service provider, not the individual user, was the entity legally responsible for "making the broadcasts available for transmission." The key factors were:

  • Control over Essential Equipment and Input: The service provider owned (or in Maneki TV, hosted and managed user-owned devices as part of its service) and controlled the base unit equipment. Crucially, the provider performed the acts of connecting these units to the broadcast antennas and the internet, thereby inputting the broadcast signals into the "automatic public transmission apparatus."
  • System Design and Operation: The provider designed and operated the system that enabled the remote streaming. The user's remote command to select a channel was merely a trigger for a transmission made possible by the provider's setup.

The Court found that the act of "inputting information [the broadcast content] into an automatic public transmission apparatus that is connected to a telecommunication line for public use" (as per Article 2(1)(ix-v)(a) defining an act of "making available") was attributable to the service provider.

"Automatic Public Transmission Apparatus" and the "Public" Element:
An "automatic public transmission apparatus" is a device that, when connected to public telecommunication lines, can automatically transmit information stored on it or inputted into it. The Maneki TV Court clarified that even if an individual base unit is configured to transmit only to a single, pre-paired remote device (a 1-to-1 transmission link), the base unit can still be part of an "automatic public transmission apparatus" if the overall service or system it is part of enables automatic transmission to the public.

The definition of "public" (kōshū) under Japanese Copyright Act (Article 2(5)) includes "unspecified persons or many specified persons."

  • "Unspecified persons" typically refers to the general public where there is no prior personal relationship with the transmitter. Users of a commercial service open to anyone would be "unspecified."
  • "Specified persons" are individuals with a pre-existing relationship (e.g., employees of a company, members of a club). If this group is numerically significant, they constitute "many specified persons" and are thus part of the "public."

Applying to the Radio Retransmission Scenario:
If a company (like "TechForward Inc.") provides its employees in a branch office with a service to stream radio from the head office:

  • TechForward likely controls the base units, connects them to radio reception and the internet, and manages the system. Following Maneki TV, TechForward would be performing the pivotal acts of inputting the broadcast into the transmission system.
  • The critical question then becomes whether the recipients (the employees) constitute "the public."
    • The employees are "specified persons" due to their employment relationship with TechForward.
    • If the number of employees using the service is small, a court might find this akin to a private group or family sharing, and thus not "many specified persons." In this case, the transmission would not be "to the public," the apparatus would not be an "automatic public transmission apparatus," and TechForward would not be liable for infringing the Right of Making Available.
    • However, if the number of employees using the service is larger (the PDF's related questions suggest scenarios with 15 or 50 users), they could well be deemed "many specified persons." In such a case, the retransmission would be "public," and TechForward would be directly infringing the broadcaster's neighboring rights under Article 99-2 (and potentially the copyrights in the music if these were not cleared by the original broadcaster for such retransmission).

Conclusion: Attributing Responsibility in a Connected World

Japanese copyright law, through judicial interpretation, has shown a clear tendency to attribute legal responsibility for infringing uses of music and broadcasts not just to those who directly perform or initiate a specific transmission, but also to entities that exert significant management and control over the infringing activities and profit from them, or those who operate the core infrastructure enabling such unauthorized uses.

For live music venue owners, actively managing the performance environment, providing essential equipment, and structuring their business to profit from the attraction of musical performances can lead to direct liability for unauthorized music played by hosted artists. For service providers offering technologies that enable the retransmission of broadcast content, their control over the technical setup and the nature and size of their user base are critical factors in determining liability for making copyrighted content available without authorization. Businesses in these sectors must therefore be acutely aware of these principles and ensure rigorous copyright clearance and compliance in their operations in Japan.