## Facts

- The Korean Film Export & Import Corporation (Korean Film) was an entity of the North Korean government.
- In 2002, Korean Film entered a contractual relationship with Kanario Kikaku Ltd. (Kanario), a Japanese company, to arrange presentation of North Korean motion pictures on Japanese television.
- In 2003, North Korea acceded to the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). Japan was already a party.
- Later in 2003, Fuji Television Network, Inc. (Fuji Television) broadcast an excerpt from a North Korean movie in a news/current-affairs segment discussing North Korean media propaganda techniques.
- Korean Film and Kanario alleged the broadcast used the excerpt without authorization and sued Fuji Television in Japan for copyright infringement.
- The lower court ruled partly in favor of Korean Film and Kanario, even though Japan did not recognize North Korea as a legitimate nation.
- Fuji Television filed a final appeal to the Supreme Court of Japan (First Petty Bench).

## Issues

1. After North Korea’s accession to the Berne Convention, did a motion picture originating in North Korea receive copyright protection in Japan under treaty-based protection, despite Japan’s nonrecognition of North Korea?
2. Could Korean Film and Kanario enforce asserted copyright interests in Japanese courts against Fuji Television for the 2003 broadcast excerpt?

## Decision

- The Supreme Court addressed whether Berne Convention-based protection applied to works originating in North Korea in light of Japan’s position toward North Korea.
- The Court ruled that Japan was not required to extend Berne-based copyright protection to the North Korean work under the circumstances of Japan’s nonrecognition of North Korea.
- The Court therefore rejected the plaintiffs’ infringement theory that depended on Berne Convention protection and ruled for Fuji Television.

## Legal Principles

- In Japan, protection of “foreign works” based on international treaties depends on whether Japan treats the relevant foreign state as being in treaty relations with Japan for the treaty at issue.
- When the question turns on Japan’s recognition of a foreign state and the resulting treatment of treaty relations, Japanese courts give decisive weight to the Japanese government’s position.
- If a work is not entitled to treaty-based protection in Japan, a domestic infringement claim premised on that protection fails, regardless of the defendant’s unauthorized use.

## Conclusion

Saiko Saibansho Daiichi Sho Hotei, Heisei 21 (Ju) no. 602, 603 (2011) concerned a North Korean government-related film rightsholder and a Japanese licensee suing a Japanese broadcaster for airing a film excerpt after North Korea joined the Berne Convention. The Supreme Court held that, given Japan’s nonrecognition of North Korea and Japan’s resulting stance on treaty relations, the Berne Convention did not obligate Japan to protect the North Korean work, and it ruled for the broadcaster on the plaintiffs’ treaty-based infringement claim.
