RokuRaku rocked by court ruling

All ex-pats become homesick at some point. The best remedy for homesickness is watching a bit of homeland TV. When I lived in Japan, watching Premier League football did it for me. For my wife, it’s Japanese dramas.

In the past, VHS tapes or DVDs of these dramas would be passed from home to home within the Japanese housewife communities living abroad. However, popularisation of the net, faster speeds and flagrant copyright abuse means that now, one only need know where to look for a quick homesickness cure.

One method Japanese people use to watch their favourite programmes when living abroad is registering with an online TV service and paying subscription fees to be able to watch all shows being broadcast on homeland terrestrial TV. Subscribers can select the programmes they want to watch before being broadcast, then watch them at a reasonable hour whenever they want – watching them live is usually out of the question due to difference in time zones.

These services have been in the spotlight recently, being sued for copyright infringement. I think the following blog article by patent attorney, Hiroatsu Ito, very clearly explains the details of a decision in a recent case and its implications for these services. I have translated it from the original Japanese. See the full article here.

On 20th January 2011, Japan’s supreme court heard an appeal by NHK (translator’s note: NHK is Japan’s equivalent of the BBC) and 5 other privately owned broadcasters for an injunction against the service known as ‘Japan Digital Household Electronics’ for infringement of copyright. The service involves the customer using a ‘RokuRaku’ device to receive recorded TV programmes outside of Japan via the internet.

The supreme court allowed the appeal from NHK, following the ruling of infringement from the court of first instance, overturning the decision of the Intellectual Property High Court (second instance). A summary of the judgement is below:

This judgement is in respect of a service which makes possible the acquisition of recordings of TV programmes which have already been broadcast. The service provider, as the administrator and controller of the process of receiving the initial broadcast (using an aerial) and then transferring it to machines with a built-in duplication facility (The ‘Duplication Device’), is to be held as the perpetrator of the duplication whenever the broadcast programme is automatically duplicated by a Duplication Device instructed to record, even though that instruction is carried out by the service user.

In other words, “When judging who is carrying out the duplication of original works , it is appropriate to take into account various factors including 1) what is being duplicated; 2) the method of duplication; and 3) the details and level of participation in the duplication process; in order to judge the actual perpetrator of the duplication.”

In this case, because the service provider’s actions were not limited to merely creating an environment to facilitate the duplication, but, in controlling and administering that process, also involved carrying out the pivotal act in occasioning the duplication by inputting information into the users’ Duplication Devices once the broadcast had been received, the service provider was ruled to be the perpetrator of the duplication and was therefore judged to have infringed copyright.

This decision was no surprise after a similar service, ‘Maneki TV’, suffered the same fate at the hands of the supreme court a couple of days earlier.

I guess this means Japanese people will need to rely on sites hosted in China for their copyright infringement from now on.