Date
of Judgment: July 17, 1997
Issuing
Authority: Supreme Court
Level
of the Issuing Authority: Final Instance
Type of Procedure: Judicial(Civin( �o:p>
Subject
Matter: Copyright and Related Rights (Neighboring Rights)
Summary
of the judgment (decision):
1. A comic
character that is described repeatedly in the comics with the same name,
appearance, role and other features cannot be regarded as a copyrightable work.
2. Copyright for a secondary work arises only
with regard to the creative parts that have been newly introduced in the
secondary work and it does not arise with regard to other parts in the
secondary work that are common to and identical in substance with the original
work.
3. In the case of a series of comic strips, if
the term of copyright protection expires with regard to the strip in which a
comic character appeared for the first time, copyright can no longer be claimed
with regard to said character even before the term of copyright protection
expires with regard to the subsequent strips.
4. In order to prove that a person has exercised
the right of reproduction under Article 21 of the Copyright Act without
interruption as required to fulfil the condition of acquisition by
prescription, it is necessary that the situation in which the person appears to
exercise the right to reproduce the work in whole or in part monopolistically
and exclusively as the copyright holder would do, has continued to exist, and the
person who alleges acquisitive prescription must bear the burden of proof of
this fact.
5. In the case where the appellee files a claim
for an injunction under Article 1, paragraph (1), item (i) of the Unfair
Competition Prevention Act (Act No. 14 of 1934) prior to the amendment by Act
No. 47 of 1993, and the appellant raises a defense against this claim under
Article 6 of said Act on the grounds of its exercise of a trademark right, if a
trial decision rendered by the Japan Patent Office (JPO) to invalidate the
trademark registration regarding said trademark right becomes final and binding
after the conclusion of oral argument in the fact-finding proceedings, the
appellee may allege this fact during the final appeal proceedings, in light of
the provisions of Article 420, paragraph (1), item (viii) of the Code of Civil
Procedure.