Google settled in France to pay 60 million Euros for establishing a fund for its Google News using the titles and snippets. What happens if Google or other companies use the headlines and a few lines of news from the news websites without a license in Japan?
There is a similar case in Japan called Yomiuri v. DAC Corporation ("DAC"). Yomiuri is a major newspaper company running a news website called Yomiuri Online. DAC started a service where they distribute the headlines of news websites including Yomiuri Online called "Line Topics." Yomiuri sued DAC for (1) infringement of copyright and (2) a tort claim.
The Tokyo District Court denied both of the claims. 1857 Hanrei Jiho 108 (Tokyo District Court, March 24, 2004).
For the first copyright claim, the court found that it was too short. As the headlines are made for the purpose of telling the contents of the news to the reader, there is little choice of the expression. This is something similar to the merger doctrine in American copyright law.
On the issue of tort, Tokyo District Court also denied Yomiuri's claim saying that as there is no exclusive right of Yomiuri, it is free for DAC to make use of such information.
Yomiuri appealed and the Tokyo High Court reversed the trial court's judgment (Intellectual Property High Court, October 6th, 2005).
First, on the copyright issue, the High Court agreed with the District Court. The points the High Court mentioned were that these headlines are merely facts expressed in a standard way and there is no creativity that the Japanese copyright law requires for the protection.
Second, on the tort issue, the court found that DAC was liable. Although the court's opinion is not a simple one, the punchlines are the following:
The court found that what DAC was merely dead-copying or doing something quite similar to dead-copying. In contrast, Yomiuri is taking the time and effort to make the headlines. The court found that for a tort claim to stand, it is not necessary to say that copyright or other rights were infringed, what is necessary is that the interests that are protected by the law are illegally invaded. Finding out that DAC is benefiting from advertisements and that Yomiuri is also trying to profit from advertisements, the court concluded that both companies' businesses are in a certain part competing. As a result, the court found that Digital Media had gone too far and it was not legally acceptable. Therefore, the court reversed the judgement and awarded Yomiuri damages. This is something like a "sweat of the brow" argument.
There are many interesting points of this case, but what I found interesting compared with French case is that it is virtually impossible to think of a 60 million Euro settlement. In the Yomiuri case, only 237,741 yen was awarded to Yomiuri. This is a little more than $2,000. The calculation of the court is 10,000 yen (about $100) damages for one month of operation. Of course, Google News is using snippets in addition to headlines and the snippet might enable a copyright claim and increase the amount of damages. But 60 million Euros seems to me to be going too far. It is often said that the amount of damages awarded in Japan is small. This might be another good example of how small Japanese damages are.
DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.
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