“Photo Retweet”

Decision of the Supreme Court of Japan 21 July 2020 – Case No. 2018 (Ju) 1412

  1. 1.

    The process wherein "the work is made available or presented to the public" as referred to in Article 19, paragraph (1) of the Copyright Act is not required to be carried out through the exploitation of the work regarding which any of the rights prescribed in Articles 21 to 27 of the same Act exists.

  2. 2.

    Where a person made a post, via an information network on the internet, with an image of a photograph, which is another person's work, and this image was displayed, with its part containing the indication of the author's name having been cut off, on the terminals of the viewers of the webpage of that post, the person who made the post cannot be deemed to have indicated the author's name, even if the viewers could have viewed the original image accompanied by the indication of the author's name, under the following circumstances (1) and (2) described in the judgment:

    1. (1)

      The original image accompanied by the indication of the author's name can be viewed only on the webpage that is different from the abovementioned webpage; and

    2. (2)

      There are no such circumstances where it can be said that the abovementioned viewers would normally click the displayed image.

  3. 3.

    Where a person who seeks the disclosure of identification information of the senders under Article 4, paragraph (1) of the Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders suffered infringement of his/her right of attribution regarding a photograph which is the person's work, due to a post containing an image of the photograph made via an information network on the internet, it can be said under the following circumstances that the person who made that post falls within the category of "senders of infringing information" referred to in that paragraph, and has infringed the right of the person who seeks the disclosure of identification information of the senders, "by the distribution of infringing information" referred to in item (i) of that paragraph: when that post was made, data including HTML (a language for describing the structure, etc. of a webpage) data concerning the link to the file of that image and the designation of the manner of displaying the image was recorded on the recording medium in a specified telecommunications facility and transmitted to the terminals of the viewers of the webpage of the post, causing the data of that image to be transmitted from the server of the linked page to those terminals, thereby causing the image to be displayed on the terminals with its parts having been cut off as designated, due to which the indication of the author's name attached to the image was not displayed and the author's right of attribution was infringed.

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Copyright Act, Arts. 19, 21, 22, 22-2, 23, 24, 25, 26, 26-2, 26-3, 27; Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to Demand Disclosure of Identification Information of the Senders, Arts. 2 item (iv), 4(1). “Photo Retweet”. IIC 52, 234–235 (2021). https://doi.org/10.1007/s40319-021-01021-5

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Keywords

  • Right of attribution
  • Making available and presenting to the public
  • Infringement
  • Sender of infringing information
  • Distribution of infringing information
  • Trimmed photo