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Korean Film Export & Import Corp. v. Fuji Television Network, Inc.

Published online by Cambridge University Press:  20 January 2017

Mizushima Tomonori
Mizushima Tomonori*
Affiliation:
Nagoya University
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Extract

On December 8, 2011, the Japanese Supreme Court decided that the accession to a multilateral treaty by a state not recognized by Japan cannot create obligations between Japan and that state except with respect to obligations of universal value under general international law. The case arose in the specific context of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) but has broader implications for the operation of multilateral treaties in general.

Keywords

State recognitioneffect of unrecognized state’s accession to multilateral treatyobligations of universal value under general international lawcopyright protection under Berne Convention
Type
International Decisions
Information
American Journal of International Law , Volume 107 , Issue 3 , July 2013 , pp. 627 - 631
Copyright
Copyright © American Society of International Law 2013

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References

1 Saikō Saibansho [Sup. Ct.] Dec. 8, 2011, Hei 21 (Ju) nos. 602, 603,65 Saikō Saibansho Minji Hanreishū [Minshū] 3275, translated at http://www.courts.go.jp/english/judgments/text/2011.12.08-2009.-Ju-.No.602%2C.603.html (provisional trans.). For the lower court judgments in this case, see Tōkyo Chihō Saibansho [Tokyo Dist. Ct.] Dec. 14, 2007, Hei 18 (wa) no. 6062, 65 Minshū 3329 [hereinafter District Court judgment]; Chiteki Zaisan Kōtō Saibansho [Intellectual Prop. High Ct.] Dec. 24, 2008, Hei 20 (ne) no. 10011, 65 Minshū 3363 [hereinafter High Court judgment], available at http://www.courts.go.jp. The translations in this report are by the author.

2 Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as amended July 24, 1971, 1161 UNTS 3, available at http://www.wipo.int.

3 Chosakukenhō [Copyright Act], Law No.48 of 1970, Art. 6, translated at http://www.japaneselawtranslation.go.jp. Contracting Parties, Berne Convention, WIPO-Administered Treaties, at http://www.wipo.int/treaties/en/ip/berne/.

5 In the other case, Korean Film Import & Export Corp. v. Nippon Television Network Corp., the plaintiffs brought similar proceedings against a different defendant and the courts issued similar judgments. Tokyo Dist. Ct. Dec. 14, 2007, Hei 18 (wa) no. 5640, available in 2007WLJPCA12149002, translated in 52 Japanese Y.B. Int’l L. 665 (2009); Intellectual Prop. High Ct. Dec. 24, 2008, Hei 20 (ne) no. 10012, available in 2008WLJPCA12249016, translated in 53 Japanese Y.B. Int’l L. 580 (2010); Sup. Ct. Dec. 8, 2011, Hei 21 (Ju) nos. 604, 605, at http://www.tkclex.ne.jp/(LEX/DB (TKC) 25482125).

6 Accession by the Democratic People’s Republic of Korea, Berne Notification No. 224(Jan. 28, 2003), at http:// www.wipo.int/treaties/en/ip/berne/.

7 Agency for Cultural Affairs, Statement of Apr. 22, 2003, reprinted in District Court judgment, supra note 1, at 3346.

8 Ministry of Foreign Affairs, Statement of Aug. 31, 2006, reprinted in District Court judgment, supra note 1, at 3348.

9 The North Korean Ministry of Culture responded to the view of the Japanese government in a critical manner. see District Court judgment, supra note 1, at 3349–50 (“The DPRK intends to protect copyrights of nationals of Japan... in accordance with the Berne Convention. However, if... no reciprocal compliance is guaranteed,... the DPRK is afraid that it no longer has an obligation to protect Japanese copyrights. If an illegal act like this continues, the DPRK cannot help but take measures in response to that [illegal act]. The DPRK demands that Japan comply with [its] obligations under International law.”).

10 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 20-100 (1988), 1465 UNTS 85 [hereinafter Convention Against Torture].

11 see District Court judgment, supra note 1, at 3352–55; High Court judgment, supra note 1, at 3370–75.

12 Barcelona Traction, Light & Power Co. (Belg.v. Spain), Second Phase, 1970 ICJ Rep. 3, 32, para.33(Feb. 5). ICJ judgments are available at http://www.icj-cij.org.

13 1970 ICJ Rep. at 32, paras. 33, 35.

14 Convention Against Torture, supra note 10, Art. 2(1) (emphasis added).

15 Subsequently, with regard to the obligations of a state party to the Convention Against Torture to conduct a preliminary inquiry into the facts of a case and to submit the case to its competent authorities for prosecution, the ICJ stated as follows:

All the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed... to all the other States parties to the Convention. All the States parties “have a legal interest” in the protection of the rights involved.... These obligations may be defined as “obligations erga omnes partes “....

Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), para. 68 (Int’l Ct. Justice July 20, 2012) (citation omitted).