【Research Center for the Legal System of Intellectual Property】

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Shane! Come Back! The case of "Shane"-

RC Tetsuya Imamura

Whether Shane died or survived at the end of the movie - a dispute arose in the world of Intellectual Property Law just like a dispute over the last scene of the movie.

The case（*1）started with the interpretation of Article 2 of the Supplementary Provisions of the Revision Act. The Article was established related to Article 54.1 of the Revised Copyright Act, which was put into force as of January 1, 2004, stipulating that the period of protection for cinematographic works has been extended from 50 years after the works are made public. About the interpretation of the phrase 'at the time of the enforcement' in the Article 2 of the Supplementary Provisions of the Revision Act, the issue was whether the period of protection for the cinematographic work published in 1953 should be extended or not. According to the previous rule, the movie's right was recognized on December 31, 2003, but was extinguished on January 1, 2004.

Seemingly, some papers by experts established a claim with conviction that the cinematographic work made public in 1953 should be extended in terms of the interpretation of the intent of legislator. However, the court adopted a different conclusion. Although it is important to see which interpretation is correct, there must be an issue more necessary to be mentioned. The problem is that, even though the phrases of the legislation are not normative prerequisite, they have some sort of ambiguity, "polysemy" in other words, enough to allow a dispute arose like this.

Copyright is basically property law. But it has an aspect to indirectly regulate others' expression as a result of establishing property right. The principle of the Constitution requires that the content of the legislation that regulates mental freedom such as freedom of expression must be clear. In addition, copyright infringement could be subject to criminal punishment. Requesting legality principle must be considered. Considering the Law has the nature of that kind, a question arises that, assuming the intent of legislator was clear, the intent must be specified as legislative phrases as clear as to prevent judges of the courts who are the legal experts being puzzled about the interpretation of the law.

If we cannot scoff at the court's judgment as "an unusual judgment in judicial history", there might be a critical condition such as a sort of incorrect legislation that there is a difference between the intent of legislator and the phrases of the law. I would like to believe it is not true because incorrect legislation is supposedly impermissible. Anyway, different from the movie, the real litigation cannot include both the view of death and survival. I would like to calmly keep watching further moves.

*1 Intellectual Property High Court / Decided 29, 2007 / Case No. 2006 (ne) 10078. The case summary is available in the AIPPI Journal, May 2007, p149 (Masuyo NAKAJIMA, TUS/MIP).