Supreme Court, Second Petty Bench · October 9, 2026 · Reiwa 6 (2024) (Ju) No. 2078 · Judgment; final appeal dismissed

The Court upheld the lower court's holding that imitating in detail musical scores that are not copyrightable works, and publishing the imitations free of charge on a website, constituted a tort.

Claim for damages

Facts

The respondent, a music score publisher, transcribed 579 pieces of band music at great expense and sold the resulting band scores. The respondent's scores are not works within Article 2(1)(i) of the Copyright Act. The appellant company, a competitor, for at least about six and a half years produced scores that imitated the whole of the respondent's scores in detail, relying on them without transcribing the music itself, and published them free of charge on its own website, earning advertising revenue. In some years during the publication period the respondent's sales fell substantially. The respondent claimed that its business had been obstructed and sought damages, among other relief, from the company and its representative director on the basis of joint tort.

Issue

Under what circumstances does imitating musical scores that are not copyrightable works constitute a tort?

Ruling

The Court held that an act equivalent to the use of a work, in respect of something that is not a work, does not constitute a tort unless there are special circumstances, such as the infringement of a legally protected interest different from the interest in the use of works that the Copyright Act regulates (referring to the judgment of the First Petty Bench of December 8, 2011). It further held that where such an act goes beyond the scope of free competition under socially accepted norms and obstructs the business and infringes the business interests of the other party, it infringes a legally protected interest different from the interest in exclusive use of the scores, and the special circumstances exist. Considering that the respondent had transcribed at great expense; that the appellant company over a long period avoided the cost of producing scores for many pieces by imitation and continued its business through free publication; that the conduct readily took customers from the respondent, had a direct and serious adverse effect on the continuation of its business, and was known to the appellants to do so; and that allowing similar conduct could harm fair competitive order, the Court held that the conduct was a competitive act using grossly unfair means to make it difficult for the respondent to continue its business, and constituted a tort. The opinion was unanimous. Two Justices wrote supplementary opinions. In outline, one states that whether use of an intellectual product not protected by copyright law is a tort must be examined by weighing fair competitive order against the freedom to imitate, and that the conduct here can be assessed as obstruction of business beyond free competition. The other states that the positive significance of new forms of business as a source of social vitality must also be considered, but that this case involved free-riding on the results of a conventional business model while exclusively taking the fruits of a new one, so that tort liability is appropriate.

Provisions

Copyright Act, art. 2(1)(i)