Can Non-Copyrightable Works Be Protected Under Unfair Competition Law? The Japanese “North Korea” Case

Abstract

Protection under unfair competition law should be restricted in the case of non-copyrightable works as well as other types of non-IP protection, because the limits of copyright protection, for example, define the boundaries of freedom of information or imitation. This argument was especially emphasized in the Intellectual Property High Court’s decision in “Yomiuri Online” in 2005 on the balance of interests, which concerned a service similar to Google News linking on the Internet. However, this principle does not always apply to all cases. Unfair competition law should be applied in cases where copyright protection is denied, such as those involving the protection of foreign nationals of non-recognised States. The Japanese Supreme Court in its “North Korea” decision in 2011 in general refused protection under unfair competition law (tort law) against the use of a work as the film failed to qualify as a copyrightable work because Japan had no obligation to grant protection to a non-recognized State under the Berne Convention. The Supreme Court reasoned that the right to exclusive use of non-copyrightable works was not legally protectable under tort law. This article will review and clarify the scope of this Supreme Court judgement from the perspectives of comparative law in Germany and Japan, international law as well as Google News type cases.