Are music schools infringing on musical performance rights?
The Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) has notified the Agency for Cultural Affairs of the rules on charging royalties for performances intended for education at music schools. Music schools filed a lawsuit, insisting that they have no obligation to pay royalties, and the case is under trial at present.
In this music school case, the main points are whether the musical performance right under the Copyright Act is considered to be infringed by music school operators during their lessons (those for up to 10 students in a classroom, or one-on-one lessons at a student’s home), for the following two cases: (i) performances by teachers (as examples for students), and (ii) performances by students.
In order to constitute an infringement of the musical performance right, an act in question must satisfy the following two conditions: (1) falling under the acts subject to the musical performance rights provided for in Article 22 of the Copyright Act; and (2) not falling under the limitations of copyright provided for in Article 30 of the Copyright Act and thereafter.
Regarding condition (1), Article 22 of the Copyright Act provides that “the author of a work has the exclusive right to give a stage performance or musical performance of the work with the purpose of having it seen or heard directly by the public (hereinafter referred to as “publicly”).”
According to this provision, acts of performance that infringe the musical performance rights are limited to those performed “publicly,” that is, “for the purpose of having it … heard directly by the public.” For example, playing music for family members is not an infringement of the musical performance rights because it is not for the public.
In the context of the Copyright Act, the term “the public” is basically considered to mean either unspecified or many persons. There are various interpretations of the words “specific” and “unspecified.” However, the prevailing interpretation is that students are considered “the public” from the viewpoint of music schools, as anyone can become a student by paying lesson fees.
Besides, even if a case falls under performances for the public, it shall not be considered an infringement of the musical performance right as long as it falls under the provision sited in condition (2), the limitations of copyright under Article 30 of the Copyright Act and thereafter.
Regarding musical performance rights, a particularly important rule is specified in Article 38, Paragraph (1) of the Copyright Act. The provision specifies that, a work that has been made public can be performed lawfully (without permission of the copyright owner) if it meets certain requirements, including “for non-commercial purposes” and “without charging a fee to the listening audience.”
For example, the act of performing a musical piece at the culture festival of a university, which is for non-commercial purposes without receiving value, does not constitute an infringement of the musical performance right even if it intends to be heard directly by the public.
When considering the application of these provisions, the question is that “who is the subject entity giving the musical performance?”
In particular, if the subject entity of musical performances by students is considered just as performing students, the primary issue is whether the purpose of having it heard by a teacher is considered as “having it heard by the public.” In this regard, even if the performance is considered as being made for the public, the students themselves have non-commercial purposes and do not receive any value, so it does not constitute an infringement of the musical performance right.
Are students’ performances considered to be given by music schools?
However, by the judgment of the first instance in February 2020 (Tokyo District Court Decision of February 28, 2020, Case No. 2017 (Wa) 20502), infringement of the musical performance right was affirmed, with ruling that not only (i) the teacher’s performances, but also (ii) the student’s performances are considered to be given by music school operators.
In fact, lying behind this notion, are the precedent court cases related to karaoke. The most important one was the Supreme Court Decision of the Club Cat’s Eye case in 1988 (Supreme Court Decision of March 15, 1988, Minshu Vol. 42, No. 3, at 199).
In this case, the infringement of musical performance right by the karaoke snack bar owner was affirmed, with the judgment that the singing by customers is considered as singing by the karaoke snack bar (owner) in a normative sense, because the customer’s singing is under the control of the bar, and the bar makes profits from the customer’s singing.
The logic of this decision was subject to considerable criticism, but it has since been extended to various cases in lower courts.
For example, when customers sing in a karaoke box, the subject entity of singing is considered to be the store, which causes it to be heard by the customers who are in the same room. To give an extreme example, even in the case of solo karaoke (a single customer singing alone), the store is regarded as causing singing to be heard by the customer (who is actually singing).
These precedents have been accumulated and have become known as the “karaoke doctrine.”
And, at the judgment of the first instance, the court applied this karaoke doctrine also to the students’ performances in music schools. The students’ performances are under the control of music schools, so the subject entity of the performances is music schools.
In the case of private lessons, it is considered that a music school is causing performances (performed by a student actually) to be heard by a student (performing actually), who is considered the “public” from the viewpoint of the music school. In this regard, it is considered that the performance is made for the public, which constitutes an infringement of the musical performance right.
What do you think about this judgment? In fact, some researchers of the Copyright Act were skeptical, particularly about the point that even students’ performances were considered to be performed by music schools.
The music schools appealed, not convinced by the first instance.
Appeal court overturned the judgment partly
In March 2021, an appeal court judgment (Intellectual Property High Court Decision of March 18, 2021, Case No. 2020 (Ne) 10022) was issued. At this time, the court judged that (1) performances by teachers (who are operators of music schools or have concluded an employment or quasi-mandate contract with music schools) are considered to be carried out by music schools and constitute infringement of the musical performance right. However, (2) performances by students are not considered to be carried out by music schools, and do not infringe the musical performance right.
The appeal court judged that, the essence of the students’ performances in music schools lies “just in having it heard by a teacher and receiving guidance therefrom,” and students “voluntarily and independently give musical performances solely for the purpose of improving their own musical performance techniques, etc.” It can be said that music schools develop environment for the students’ performances, but students’ performances cannot be regarded as performances of music schools.
Everyone may think that the decision of the appeal court, that judged performances by students as being carried out by the students themselves, is an unsurprising and obvious interpretation. However, it was groundbreaking considering that many precedents had been accumulated based on the karaoke doctrine.
Having said that, this judgment does not deny the karaoke doctrine but mentions indirectly that the case of music schools is different from that of karaoke boxes.
On the other hand, teachers’ performances were judged as infringement of the copyright, with the same logic as the first instance. In theory, royalties for copyrights for only teachers’ performances could be much lower than those for both teachers and students’ performances.
However, music schools appealed to the court arguing that no copyright has been infringed by teachers’ performances as well, and JASRAC also appealed for copyright infringement in terms of students’ performances.
There are various arguments for application of the Copyright Act
The Copyright Act protects rights of authors who create works (rights of authors and moral rights of authors), as well as rights of various entities (performers, producers of phonograms and broadcasters) involved in the distribution of works (neighboring rights). Through the protection of these rights, the Act aims to achieve an environment in which such entities involved in the creation and distribution of works can receive appropriate value and more works are created and spread throughout the world.
On the other hand, excessive protection of the rights may restrict use of works and hinder new creation. How to achieve an appropriate balance of protection of rights is a difficult question.
For example, on the Club Cat’s Eye case mentioned earlier, the Supreme Court made a somewhat unreasonable interpretation that a karaoke snack bar itself is the subject entity of the act of singing at the karaoke snack bar. As a background factor, there might be the concern that writers and composers might not receive sufficient value from karaoke under the Copyright Act of the time, if the act of singing was regarded as the customers’ act as it was.
Of course, even under the Copyright Act at the time, royalties were charged to tapes for karaoke. However, the Supreme Court judge at the time probably thought it unreasonable that the karaoke snack bar could keep on making profits using the tapes once they bought them, while creators and performers gain no additional profit.
Since then, however, the concept of the karaoke doctrine has been deployed in many legal precedents. There are various theoretical assessments on this point.
I am reluctant to extend the karaoke doctrine, and as for the music school case, I personally agree with the appeal court judgment.
However, there are some questions: Students come to music schools to improve their own performance skills, therefore they are not subject to the copyright infringement. Then, what about customers who practice karaoke alone to improve their singing skills? What about karaoke schools?
In addition, the involvement and management of music schools for students are much stronger than that of karaoke boxes for customers. Nevertheless, the subject entity of playing at music schools is the students themselves, while karaoke boxes are regarded as the subject entity of customers’ singing. I wonder, aren’t these ideas inconsistent? If so, I suppose the logic of the karaoke doctrine may be unreasonable in the first place.
There are various ways of thinking about the karaoke doctrine in general as well as about the case of the music schools. In view of the profits that music schools make as a result of their students’ performances, there may be the idea that music schools should pay some fees to copyright owners. On the other hand, some people may consider infringement of the musical performance right by teachers should be denied because music schools contribute to the expansion of music culture as students can come into contact with recent music and practice their favorite pieces.
It is a difficult problem, but I think we should discuss keeping in mind the point of view of what is beneficial for creation, business, culture, and so on. Also, it is important for us to raise awareness about such discussions and system designs, from the user’s perspective.
* The information contained herein is current as of February 2022.
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