09 October, 2018 Company news

Kyoto police made an arrest in a criminal copyright infringement case while scanning a comic book. The entrepreneur purchased the necessary equipment and provided services for scanning popular comics “manga” to make it easier to read them on digital media. The Intellectual Property Court in Japan considered this a copyright violation. The Supreme Court refused to consider the appeal.

What did the scanning service offer? The client sends the book to scan. The provider processes it and scans it. Then it sends all the data to the owner of the book, and throws out the book itself, because after scanning the book becomes unsuitable for reading - it is cut for ease of service. After that, the provider receives money for services rendered.

Scanning creates a digital copy of a book, more precisely, a work. Under Japanese law, if a person does the same thing personally and only for himself, then the legislation on intellectual rights is not violated, as it provides an exception for copying for personal purposes. But if it is entrusted to another person, as in this case, the question arises who makes a digital copy of the work and can it be qualified as an exception - copying for personal purposes?

Judicial practice in Japan in two ways determines who legally performs the scan itself. According to the first one, this is the person who provides scanning services, because it physically creates copies. According to the second, it is the owner of the book, taking into account that the person scanning the book is only a “tool” or “assistant” to the owner of the book. The method of determining the person performing the scan is important for qualifying the exception - copying for personal purposes.

If we accept that the scan is carried out by the owner of the book, but with the help of another person providing technical and other support services to achieve the desired result, then the exception — creating a copy for personal use — applies.

In this case, the court decided that the service provider was scanning because it scanned the books with the intention of making a copy as an individual, regardless of the owner of the book. Therefore, in this case, the provider cannot be considered as a “means” or “assistant” of the owner of the book.

In accordance with the laws of Japan, in order for the use to be qualified as personal, that is, “for yourself”, the user must reproduce the work for himself personally. If a service provider qualifies as a scanner, the question arises whether it performs the reproduction for himself or for the owner of the book?

In this case, the provider claimed that the owner of the book should also be qualified as the person scanning the books. After all, the result of the service provided was intended not for the provider, but for the owner of the book - the customer. The court rejected the “request” of the provider and noted that the scanning of books was carried out for commercial purposes and the scanning business itself is focused on an indefinite number of clients, which does not correspond to another mandatory factor for qualifying personal use - “use within a limited circle” of individuals.