Non-infringement of copyright may still constitute tort

1. A Recent Notable Supreme Court Decision in Japan

On 9 October2026, the Supreme Court of Japan handed down a notable decision in the “Band Score Case,” ruling that a tort can be established even when an act does not constitute copyright infringement. (Case No. Reiwa 6 (2024) (Ju) 2078)

The dispute centered on whether copying “band scores”—even if not protected by copyright—could constitute a tortious act. A band score is sheet music detailing individual parts of a band (vocals, guitar, keyboard, drums). Unlike classical music, band music is typically finalized collaboratively during recording, meaning a complete original score by the composer rarely exists.

The plaintiff (the appellee), a sheet music publisher, employs highly trained professionals to transcribe each part by ear—a process requiring significant time and specialized musical skill. These scores were then sold with the original copyright holders’ permission. Meanwhile, the defendant (the appellant), a website operator, published numerous scores for free over roughly six and a half years, including suspected direct copies of the plaintiff’s work, with generating substantial advertising revenue.

Because a band score merely records the composers’ copyrighted music, it generally lacks its own copyright. With reference to this background, the plaintiff did not claim copyright infringement. Instead, they filed a lawsuit with  a standard civil court (not a IP specialized department) seeking damages based on general tort law.

The Tokyo District Court initially dismissed the claim. However, the Tokyo High Court reversed this decision, ruling that creating band scores requires specialized skill and that the defendant’s unauthorized copying “free-rode on the time and effort spent on transcription, infringing upon the plaintiff’s business interests.” The High Court awarded the plaintiff approximately 170 million yen. The Supreme Court ultimately upheld this ruling and dismissed the appeal.

2. The Precedent: The North Korean Film Case

When a copyrightability is denied for a certain work, can tort liability be affirmed for such work? Historically, the Supreme Court’s 2011 decision in the North Korean Film Case set a notoriously high bar for such claims. (Case No. Heisei 21 (2009) (Ju) 602; English Summary)

In that case, a Japanese broadcaster aired a short segment of a North Korean film without permission. The Supreme Court ruled that because Japan does not recognize North Korea as a state, the film was not protected under the Japanese Copyright Act.

Regarding the general tort claim, the Supreme Court overturned the lower court’s award of damages, stating:

“If a certain work does not qualify as a copyrighted work, the right to exclusively use said work is construed as not being subject to legal protection. Therefore, it is appropriate to construe that the act of utilizing a non-copyrighted work does not constitute a tort unless there are special circumstances, such as the infringement of legally protected interests distinct from the interests derived from the use of copyrighted works regulated by the Copyright Act.”

This ruling made it exceptionally difficult to establish a tort when there was no copyright infringement.

3. The Supreme Court’s Ruling in the Band Score Case

Returning to the Band Score Case, the Supreme Court confirmed the scores were not copyrighted works and reiterated the North Korean Film Case standard, requiring “special circumstances” for a tort.

Crucially, the Court defined these circumstances as follows:

“However, where the aforementioned act does not merely remain an act corresponding to the use of a work, but can be deemed to deviate from the scope of free competition under accepted social norms, thereby obstructing the plaintiff’s business and infringing upon its business interests, it infringes upon the plaintiff’s legally protected interests distinct from the interest of exclusively using the plaintiff’s scores. In such cases, the aforementioned ‘special circumstances’ exist, and it should be held that such act constitutes a tort.”

Applying this view, the Court noted the defendant continuously offered free scores and earned ad revenue specifically by copying the plaintiff’s detailed work in its entirety, thereby evading massive production costs. This easily diverted customers and directly caused a severe negative impact on the plaintiff’s business continuity—a fact the defendant knew. Furthermore, permitting such actions would place publishers who invest heavily in transcription at a severe market disadvantage, thereby harming the order of fair competition.

Consequently, the Supreme Court concluded that the defendant’s actions were highly unfair competitive acts. Because they deviated from free competition norms to obstruct the plaintiff’s business, the “special circumstances” were met, establishing a tort.

4. Practical Implications

Since 2011, when a copyright protection is denied for a work, pursuing tort liability for use of such work in Japan has been considered an uphill battle. The Band Score Case breaks new ground by clearly recognizing that “special circumstances” exist when an act deviates from free competition norms to obstruct a business and infringe upon commercial interests.

In general, this decision is  positively accepted as a well-balanced decision thoughtfully distinguishing between the “interest of exclusive use” under copyright law and “business interests” protected against unfair interference that exceeds the bounds of free competition.

With the rapid advancement of AI, new forms of expression and business models will inevitably emerge, some falling outside traditional copyright protection. This landmark decision provides a roadmap, showing that pursuing tort liability remains a viable option in such cases. However, establishing a tort will continue to require careful and case-by-case assessments reflecting evolving times and business landscapes.