Japan’s Supreme Court rules copying unprotected works can still constitute a tort

Japan’s top court has upheld approximately JPY 169 million in damages against a website operator that reproduced and distributed musical scores outside copyright protection, finding that copying can nevertheless unlawfully interfere with a competitor’s business interests.

Japan’s Supreme Court has upheld a damages award of approximately JPY 169 million (USD 1 million) against GLNET Co. and its representative director after they copied and published musical band scores that did not qualify for copyright protection.

In its October 9, 2026, decision, the Supreme Court’s Second Petty Bench unanimously dismissed the defendants’ appeal, leaving in place a Tokyo High Court judgment in favor of music publisher Fairy Co. The ruling establishes that copying unprotected material can constitute a civil tort under Japanese law where the conduct exceeds the bounds of fair competition and infringes legally protected business interests.

The decision is significant for businesses that invest substantial resources in producing and commercializing material that falls outside copyright protection. However, the court did not establish a general right to prevent the copying of such material. Instead, its decision turned on the particular circumstances of the dispute, including the scale of the copying, the production costs avoided by the defendants and the resulting harm to Fairy’s business.

How the dispute arose

Fairy produces and sells band scores by transcribing recorded music into written notation. The process requires time and specialist expertise, and the company obtains permission from the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) to use the underlying music.

The scores at issue were not considered copyrightable works under Article 2(1)(i) of Japan’s Copyright Act because the transcriptions did not qualify as creative expressions. Fairy therefore did not base its claim on copyright infringement of the scores themselves.

Instead, the publisher brought a damages claim under Article 709 of Japan’s Civil Code, alleging that GLNET and its representative had unlawfully interfered with its business interests.

According to the court findings, GLNET’s representative purchased Fairy’s scores for 608 songs and provided them to staff. The defendants subsequently reproduced scores for 579 songs and made them available free of charge on the company’s website, generating advertising revenue.

The conduct continued for approximately six and a half years, from December 2011 to June 2018. The imitations substantially reproduced the original notation, with a reported similarity rate exceeding 90%.

Fairy initially sought JPY 500 million in damages. The Tokyo District Court dismissed the claim in September 2021 after finding that copying had not been established. However, the Tokyo High Court reversed that decision on June 19, 2024, and awarded approximately JPY 169 million in damages.

The Supreme Court’s October 9 decision leaves that award in place.

Supreme Court identifies limits to free competition

The central question was whether copying material outside copyright protection could nevertheless constitute an unlawful act under civil law.

The Supreme Court applied the principle established in its 2011 North Korean Films decision, under which the use of material that is not copyright-protected does not ordinarily constitute a tort unless special circumstances establish an infringement of a legally protected interest.

In the Fairy dispute, the court found that those exceptional circumstances existed.

GLNET had reproduced hundreds of scores without undertaking the transcription work itself, avoided substantial production costs and offered comparable material free of charge. The court also considered evidence that Fairy’s sales had declined significantly during the period in which the imitations were available.

Taken together, these factors supported the conclusion that the defendants’ conduct went beyond the bounds of socially acceptable free competition. Their actions made it easier to divert customers from Fairy and had a direct and serious adverse effect on the continuation of the publisher’s business.

The court concluded that the defendants had engaged in competitive conduct using markedly unfair methods, thereby infringing Fairy’s legally protected business interests and giving rise to civil liability under Article 709 of the Civil Code.

The judgment is notable because it confirms that the absence of copyright protection does not necessarily rule out every other form of legal protection. However, liability depends on the circumstances and cannot be inferred simply from the fact that one business has copied another’s work.

A narrow ruling with wider implications

The decision does not mean that businesses can automatically prevent competitors from copying material merely because its creation required considerable time, effort or expense.

In a supplementary opinion, Justice Akira Ojima emphasized that intellectual creations may generally be imitated and freely used even when their production has required substantial investment. The case instead concerned an extensive pattern of copying that allowed the defendants to avoid production costs, compete by offering comparable material for free, and seriously undermine the publisher’s business.

That distinction will be important for businesses operating in markets where copyright protection is unavailable or limited. Although the ruling confirms that civil law can provide an alternative route to relief in exceptional circumstances, it does not create a general exclusive right over otherwise unprotected material.

The decision also raises questions about how the principles might apply as technology evolves. Justice Ojima noted that technological advances could affect the circumstances relevant to future assessments. Automated music-transcription tools, for example, could change the analysis of production costs and the competitive circumstances in which scores are created.

For intellectual property practitioners, the judgment highlights the importance of distinguishing between lawful reuse of unprotected material and conduct that crosses the line into seriously harmful competitive behavior.

As businesses increasingly distribute content through digital platforms and monetize information online, the ruling serves as a reminder that copyright status is not necessarily the end of the legal analysis. In exceptional cases, the manner in which material is copied and exploited may infringe a separate, legally protected business interest.

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