Copyright

Japan: Supreme Court Says Retweeting Tweet with Photo Infringes Right of Attribution

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(Sept. 23, 2020) On July 21, 2020, the Third Petty Bench of Japan’s Supreme Court ruled that Twitter must disclose the identification information of users who retweet a tweet in violation of the moral rights of the author of the photo contained in the original tweet. (2018 (ju) 1412 (S. Ct., July 21, 2020).) The judgment has proved to be controversial among Japan’s Twitter users and law practitioners. There are 45 million active Twitter users in Japan.

While the case involved a number of facts and legal issues, this article addresses only the abovementioned issue and facts relevant to it.

Relevant Facts and Applicable Laws

A photographer, the plaintiff in the lawsuit, posted his photo of a lily of the valley on his website in June 2009. The photographer discovered in December 2014 that someone had posted the photo on a Twitter account without the photographer’s knowledge. The photographer also found that the post had been retweeted on three other Twitter accounts. The Twitter retweeting function had automatically trimmed the photos in the original tweet and cut off the copyright symbol © and name of the copyright holder from the image in the timeline of the three accounts.

The photographer filed a lawsuit against Twitter under Japan’s Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders (Act No. 137 of 2001, amended by Act No. 10 of 2013, art. 4) to obtain the identification (ID) information of the account holder who had originally tweeted the photo and of those who had retweeted it. The Act requires proof that the rights of a person have been infringed. Among other things, the plaintiff argued that his right to attribution had been infringed. The first sentence of article 19, paragraph 1 of the Copyright Act (Act No. 48 of 1970, amended by Act No. 30 of 2018) states that

[t]he author of a work has the right to decide whether to use the author’s true name or pseudonym to indicate the name of the author, or to decide that the author’s name will not be indicated on the original work or in connection with the work at the time it is made available or presented to the public.

Intellectual Property High Court Decision (Relevant Part)

The Intellectual Property High Court (IPHC) decided that the original tweet violated the photographer’s copyright and moral rights. (2016 (Ne) No.10101 (IPHC, 2d Div., Apr. 25, 2018).) The High Court also decided that the retweets did not violate the photographer’s copyright, but violated his moral rights as an author (right of attribution and right to maintain integrity). The ruling regarding whether the retweet violated the moral rights of the photographer—the ability of the photographer to control his work—was appealed to the Supreme Court.

The High Court recognized that the retweets breached the photographer’s right to show his name and his work as it was because the modified image was trimmed and did not contain the photographer’s name. The High Court therefore ordered Twitter to reveal the ID information of the original tweeter and three retweeters. Twitter appealed this decision to the Supreme Court.

Supreme Court Decision

Twitter argued, among other things, that if viewers of the retweets clicked on the trimmed photo, the original photo with the author’s name appeared. Therefore, the photographer’s right to attribution was not infringed. The Supreme Court stated that the photographer’s name was displayed on a web page separate from that on which each image was displayed. Thus, viewers of the retweets did not see the photographer’s name unless they clicked on the image displayed on the retweet. In addition, there is no evidence that users would normally click on each displayed image. The court thus ordered Twitter to provide the photographer with the ID information of the account holders who had made the retweets.

Twitter appealed the IPHC’s decision regarding the right to maintain integrity, but the Supreme Court excluded the issue as being immaterial. (Code of Civil Procedure, Act No. 109 of 1996, amended by Act No. 36 of 2011, art. 318, para. 3.)

Justice Keiichi Hayashi dissented from the majority opinion, stating that the modification and the non-display of the photographer’s name occurred because of the mechanism of Twitter’s system, and it was Twitter that decided how images were displayed on the retweet timeline. He recognized that each retweeter had no room to delete the image posted in the original tweet or change the display method. He emphasized that it was the original tweeter, not the retweeters, who uploaded the photo without the permission of the author. He was concerned that the judgment would place a huge burden on Twitter users because they would have to check on the origin of photos and copyright consent whenever they wanted to retweet a picture.

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