Date of
Judgment:
April 11, 2003
Issuing
Authority: Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure: Judicial(Civin( �b>
Subject
Matter:
Copyright and Related Rights (Neighboring Rights)
Main
text of the judgment (decision):
1. The
decisions that were issued against the appellant in the prior instance judgment
shall be reversed.
2.The
decisions described in the preceding paragraph shall be remanded to the Tokyo
High Court.
Reasons:
Concerning
Reasons 2-2 through 4 of the reasons for Petition for Acceptance of Final
Appeal, as presented by the attorneys for the appeal; namely, OKUNO Masahiko
and MARUYAMA Atsuro
1.
The outline of the facts
which were confirmed in the court of prior instance is as follows.
(1)
The appellant is a
corporation that engages in planning and shooting and the like of animations
and the like. The appellee is a
designer and a national of the People's Republic of China.
(2)
From around 1992, the
appellee has been employed by a Hong Kong corporation that runs an animation
production studio, and the appellee has wanted to acquire the skills for
producing Japanese animations. The
appellant's representative director, who invests in the aforementioned Hong
Kong corporation, learned of the appellee and decided to help the appellee
realize his/her wish.
The appellee came to Japan on July
15, 1993 and left Japan on October 1 of the same year. Then, the appellee paid another visit to
Japan on the 31st of the same month and left Japan on January 29, 1994. Moreover, the appellee came to Japan on
May 15 of the same year and has been living in Japan ever since. While the first and second visits to Japan
were made on a so-called tourist visa, the third visit to Japan was made on a
so-called work visa (hereinafter, the visits are respectively referred to as
"First Visit" and so on).
(3)
Immediately after the First
Visit and ever since, the appellee has lived in the appellant's employee
housing unit where meals are served (with the costs paid by the appellant), and
has worked at the appellant's office.
The appellant paid to the appellee a sum of 120,000 yen as a basic
salary for each month during the period from August 1993 until February of the
next year, which covers the periods of the appellee's stay in Japan during the
First and Second Visits as well as the periods during which the appellee
returned to his/her country following each visit (in addition to the
aforementioned sum, a sum of 50,000 yen was paid as special allowance for
August 1993). However, employment
insurance premiums and income tax and the like were not deducted from the
aforementioned basic salaries.
Every time the aforementioned payment was made, the appellant issued to
the appellee a salary payment slip indicating a breakdown of the payment. At the time, the appellee's attendance
at work was not managed by means such as time-clock cards, absence report, and
signing out report.
(4)
During the period from around
July 1993, which is the time of the First Visit, until around November 1994,
which is after the Third Visit, the appellee created the pictures, as shown on
the List of Properties attached to the prior instance judgment, for use as
characters in the animation works and the like which had been planned by the
appellant. Of these pictures, those
numbered 1 to 6, 8, 9, and 19 to 23 on the List of Properties (hereinafter
collectively referred to as "Pictures") were created prior to the
appellee's Third Visit to Japan.
The appellant used the Pictures to
create a 70 mm computer-generated station simulation ride film called
"D" (hereinafter referred to as "Animation Work"), and
screened the Animation Work at theme parks in Japan. The appellee's name does not appear in
the Animation Work as the author of the Pictures.
(5)
The appellee submitted to the
appellant a notice of resignation dated June 6, 1996.
2.
In this case, the appellee
filed a suit against the appellant, based on the copyright and the moral right
of an author for the Pictures, seeking injunction of distribution and the like
of the Animation Work as well as damage compensation. The appellant claimed that since the
appellee created the Pictures while at work and under an employment contract
with the appellant, the author of the Pictures is the appellant, as per the
provisions of Article 15, paragraph (1) of the Copyright Act.
3.
The court of prior instance
determined as follows and partially approved the claims made by the appellee.
It cannot be acknowledged that an
employment contract was established between the appellant and the appellee
before the Third Visit in light of the following facts; namely, that the
appellee had not obtained the so-called work visa at the time of the First and
Second Visits; moreover, it cannot be acknowledged that the appellant had
explained the working conditions to the appellee by indicating the work rules;
there is no clear, objective evidence to support the establishment of an
employment contract, such as the existence of a written employment contract;
employment insurance premiums and income tax and the like were not deducted
from payments; and the appellee's attendance at work was not managed by means
such as time-clock cards. As such, the Pictures were not created by the
appellee as a person working for the appellant, and therefore it cannot be said
that the appellant is the author of the Pictures, and thus the appellant's
production of the Animation Work constitutes infringement of the appellee's
copyright and moral right of an author.
4.
However, the above decision
by the court of prior instance cannot be accepted, for the following reasons.
(1)
Article 15, paragraph (1) of
the Copyright Act stipulates that if a work is made by an employee of a
corporation, etc. in the course of duty under the supervision and at the
initiative of the corporation, etc., the author is the corporation, etc. as
prescribed in the aforementioned paragraph in consideration of the fact that
the work is made public under the name of the corporation, etc. In order to make a corporation, etc. the
author as stipulated in the aforementioned paragraph, the person who created
the work must be an "employee of the corporation, etc.," and it is
evident that this refers to a person who has entered into an employment
contract with the corporation, etc.
However, in regards to the argument of whether there is an employment
relationship, it is reasonable to interpret that the applicability of an
"employee of a corporation, etc.," as stipulated in the
aforementioned paragraph, should be determined based on whether the person
concerned is actually providing labor under the supervision of the corporation,
etc., and whether the money paid by the corporation, etc. to such person can be
evaluated as compensation for the labor provided, when the relationship between
the corporation, etc. and the person who created the copyrighted work is
considered substantively, and by comprehensively taking into consideration the
specific circumstances involving the manner of work, existence or lack of
supervision, amount of payment, payment method, and the like.
(2)
When this case is considered
in light of the above, the following is true as described above. [Summary] Immediately after the First
Visit and ever since, the appellee has lived in an employee housing unit of the
appellant, worked at the appellant's office, received from the appellant the
payment of a certain amount of money each month as a basic salary, and received
salary payment slips. Furthermore,
the appellee created the Pictures for use in the Animation Work which had been
planned by the appellant. These
facts should be regarded as suggesting that the appellee provided labor under
the appellant's supervision and received payment in exchange for the labor
performed. However, in the court of
prior instance, the court failed to consider the aforementioned specific
circumstances, but instead, used external factors, such as the type of the
appellee's visa status, existence or lack of a written employment contract, and
whether or not employment insurance premiums and income tax and the like were
deducted, as the main grounds for the judgment. Furthermore, the court of prior instance
immediately denied the existence of an employment relationship between the
appellee and the appellant prior to the Third Visit, and did not even confirm
whether the appellant was supervising the content and method and the like of
the work which the appellee was performing at the appellant's office. In that case, it must be said that the
prior instance judgment is unlawful, due to erroneous interpretation of
"employee of the corporation, etc.," as stipulated in Article 15,
paragraph (1) of the Copyright Act, and the appellant's claims are with merit.
5.
From what is described above,
judgment of the court of prior instance contain violation of law which clearly
influences the judgment, and thus the decisions made against the appellant in
the prior instance judgment shall be definitely reversed. In addition, this case shall be remanded
to the court of prior instance in regards to the aforementioned decisions for
further proceedings concerning the points made above.
Therefore, the Justices
unanimously render a judgment as per the main text.
(This translation is provisional
and subject to revision.)