## Facts

- Several terrestrial television broadcasters owned rights in broadcast programs.
- A service provider offered a “location-free” TV recording and streaming service using paired devices: a “parent” unit and a “child” unit.
- The parent unit, connected to a TV antenna, received terrestrial broadcasts, converted the signal into digital data, recorded the data, and transmitted the recorded data over the internet.
- The child unit allowed a user to select a program and send a recording instruction over the internet to the parent unit; the user could then receive and play back the recorded data remotely.
- The provider charged registration and monthly rental fees for the devices and service, enabling users to obtain recorded copies of broadcast programs for remote viewing.
- The broadcasters alleged the service caused unauthorized reproductions infringing their reproduction rights under the Copyright Act.
- The provider argued any copying was done by users, triggered by user commands, and thus fell within the private reproduction exception.

## Issues

1. In a remote recording service where users issue recording commands but the provider manages the equipment receiving broadcast signals and automatically recording them, who is the “person who makes the reproduction” for purposes of infringement of the reproduction right?
2. What factors govern identifying the reproducing actor in technologically mediated copying systems?

## Decision

- The Supreme Court quashed the Intellectual Property High Court’s judgment and remanded for further proceedings.
- The Court held that the service provider can be deemed the reproducing actor even though users issue recording instructions, where the provider, under its management and control, receives the broadcast and inputs it into recording equipment such that copying occurs automatically upon a user command.
- The Court found the lower court committed a legal error affecting the judgment by resolving the actor question without sufficient factual findings on the provider’s management and control of the parent devices.
- The judgment was unanimous; one justice filed a supplementary concurrence addressing consistency with prior doctrine.

## Legal Principles

- The “person who makes the reproduction” is identified through an overall evaluation of factors including the object and method of reproduction and the content and degree of each party’s involvement.
- The inquiry is normative and not limited to who physically initiates the recording; social and economic realities may be considered.
- A provider is not treated as the reproducing actor when it merely supplies an environment that makes copying easier; it may be treated as the actor when, under its management and control, it performs indispensable, central acts necessary for reproduction to occur.
- Where the provider’s controlled reception of broadcasts and input into recording machinery are essential prerequisites for automatic recording, the provider’s role may suffice to attribute reproduction to it.

## Conclusion

The Supreme Court held that a remote TV-recording service provider may be the reproducing actor when it manages and controls the broadcast reception and recording infrastructure and performs indispensable acts that make automatic copying possible upon user instruction, and it remanded for fact-finding on the extent of that control.


Broadcasters v. Location-Free Recording Service Provider, 65 Minshū 1 (Sup. Ct. Japan 2011)