‘Retweet case’ stymies Japan’s IP ambitions

The Twitter app loads on an iPhone, 22 July 2019 (Photo: Reuters/Mike Blake).

Author: Timothy Magarry, DLA Piper Australia

After placing 27th in the IMD global competitiveness rating in 2002 — it’s lowest ever at the time — the Japanese government has invested considerably in positioning the country as a leading intellectual property (IP)-based nation. Despite its efforts, Japan’s IMD ranking has fallen further to 30th in 2020. It coincides with a recent Supreme Court of Japan IP judgment on ‘retweeting’ that has left some questioning the returns made on Japan’s IP investment.

Changes since 2002 have involved significant institutional and legislative reform. These include a redrafted Basic Law on IP, the enactment of the Content Promotion Law, the introduction of specialist technical advisors and most recently a proposal to introduce English language patent litigation. Changes also include the introduction of a specialist Intellectual Property High Court (IPHC) which, upon its 2005 establishment, was a relatively unique innovation among developed countries and praised for its prompt response to business needs.

But these efforts may have been in vain. In last month’s ‘retweet case’, the Supreme Court upheld an IPHC decision finding that Twitter users are liable for copyright when ‘retweeting’ a tweet containing unauthorised photos. Twitter automatically trimmed the top and bottom thirds of the plaintiff’s photo to fit them all into the same tweet. This obscured the plaintiff’s name in the bottom corner unless users clicked on the image. The Court ruled both the original tweeter and the retweeters had infringed the plaintiff’s right of attribution and right against modification of their work.

The Supreme Court reasoned that by retweeting, retweeters ‘objectively’ caused the infringing content to appear on their and other users’ timelines in its infringing form. …continue reading