Live Music Spots Are Disappearing One By One In Japan!
Date of writing: 2006-11
JASRAC sues for personal online music storage service
On 25th May 2007, the Tokyo District court ruled in favor of JASRAC in a court case against Image City for their MYUTA service. MYUTA is a service that allows a user to upload music recorded on their own computer, such as from their CDs, store it on Image City's servers under their own personal and restricted account and then download music to their cellphone to listen to. The music can only be downloaded to the user's cellphone and is not available publicly or to any other users. JASRAC accused Image City of music copyright infringment and requested for the service to be stopped. Image City claimed that essentially the party that copies/sends the music are the users themselves and that Image City do not send the music to unspecified parties so they are not violating any copyright laws. The Tokyo District court, however, handed down the ruling saying that the central servers in the MYUTA system are owned and managed by Image City, to them the users are unspecified parties, and that they are the one who does the copying/sending of the music, thus Image City are guilty of copyright infringment unless they have consent from JASRAC.
The original Japanese news article can be found here.
Here's a blog entry talking about the court case and how other online file storage services like Yahoo! Briefcase and .mac might be illegal as a result of the ruling (English)
Here's another article about this court case and a discussion about the implications of the ruling for other online file storage services (Japanese)
JASRAC's announcement of its win in court over Image City is at http://www.jasrac.or.jp/release/07/05_3.html (Japanese)
What I Think
I am a live Jazz
fan, and often go to Jazz clubs in my home town. Recently I visited
one of my favorite clubs and was informed that live Jazz was to be
canceled at the end of the month.
I couldn't believe it, and asked why this was going to happen. The
owner replied "JASRAC (Japanese
Society for Rights of Authors, Composers and Publishers, equivalent
to ASCAP) ordered retroactive fee payments for the last 10 years of
the club's operation. There's no way I can afford to pay, so I've
decided to stop live music".
A JASRAC representative visited the Jazz club to demand the fee payment. They refused to discuss details of charges, and then
presented a scrap of newspaper with a story reporting a recent
lawsuit and subsequent closure of another Jazz club that had fought,
and lost, a similar situation.
In the end, the owner decided to submit to JASRAC's demands and pay the
JASRAC also refused to negotiate future licensing costs, and stated that a fixed
fee must be charged regardless of how many live performances are
held. The club could have one live show each week, or a show every
day of the year, and the cost would be the same. JASRAC also refuses
to reveal how they calculate fees for each club.
In Japan, NHK (National publicly funded television) fees must be paid by all people
who own TVs. However some people manage to avoid paying fees, are
unaware of fees, or simply slip though NHK's administrative cracks.
When these people are discovered, NHK usually just asks these people
to begin payments from the next month onwards. JASRAC, however,
demands payments for the past 10 years.
Does JASRAC truly protect the rights of musicians?
I often buy CDs from
musicians playing at live Jazz clubs. I believe live Jazz promotes CD
sales and helps artists succeed.
You may freely link to or copy the information on this page.
JASRAC's Recent Activities
JASRAC denies a musician the consent to perform music
On 24th May 2007, a restaurant/cafe called Desafinado wrote about the following incident on their BBS: A musician who is organizing a tour in the Kansai region of Japan wanted to hold a live performance at Desafinado so he contacted the Osaka branch of JASRAC to obtain consent to do so. However, JASRAC declined his application despite the fact that Desafinado was simply going to be a venue where the live performance was to be held. Desafinado is currently undergoing a lawsuit with JASRAC related to copyright infringement. More information can be found below under Case 3.
JASRAC charges for free performances
On 16th April 2007, the former branch manager of JASRAC's Osaka office stated in court that fees are
charged when non-profit organizations or volunteer groups hold free events at shopping malls, rest homes,
hospitals, or public places. Examples of non-profit organizations included anti-drug groups, anti-domestic voilence groups, and community volunteer groups. The former branch manager stated that even
though these events are held for free, the hosting business (such as a shopping
mall) receives financial benefit as a result of the event.
Information on Some of JASRAC's Lawsuits
Case 1: Beatles Performances at Masami Toyoda's Bistro de City
Business Type: Bar Business URL: None Location: Tokyo Number of Seats: 33 Lawsuit Type: Civil and Criminal Sequence of Events:
1981: Mr. Toyoda opens his bar hiring a student from a local music university to play classical music on the piano part-time several times a week.
The bar begins performances of The Beatles and Billy Joel songs at the request of customers, free of charge.
October 1985: JASRAC visits his bar for the first time and informs him that a licensing agreement must be signed if live performances are to take place. However, he refuses to sign claiming that he is not charging for the performances and they are just when there are customer requests.
2001: JASRAC files an injunction with the Tokyo District Court to temporarily prohibit the bar from hosting live performances and win. JASRAC also sends him an invoice for 8,400,000 Japanese Yen (approx. USD$70,000) for the past 10 years worth of licensing fees. Mr Toyoda refuses to pay the bill and comply with the order saying he doesn't understand JASRAC's method of calculation and cannot pay. The bar continues its performances.
November 2006: JASRAC files a report to the Metropolitan Police Department alleging he was in violation of the copyright law. He was arrested on the charges of illegally playing several of The Beatles' songs, including "Here, There and Everywhere" and "Yesterday", on his harmonica with an accompanying pianoist during the pervious months of August and September. He was setenced to 10 months in prison, suspended for 3 years. My Toyoda is reported as saying he was not at all expecting to be arrested as he was of the belief that he need not pay any licensing fees unless he was charging for the performances.
Current Status: (May 2007) Masami Toyoda is currently under negotiations with JASRAC about paying back the licensing fees in installments. There have been no live performances since his arrest.
Case 2: Swan Jazz Cafe
Business Type: Cafe Business URL: http://www4.ocn.ne.jp/~swan/ Location: Niigata City Number of Seats: 40 Lawsuit Type: Civil but settlement reached out of court Sequence of Events:
Mid-1960s: Swan opens for business, originally playing only recorded Jazz music. The are no live performances in the beginning.
March, September, October 2003: JASRAC hired a private detective to investigate the live performances at Swan on 3 separate occasions.
May 2003: A JASRAC representative comes into Swan and shouts in a loud voice in front of the customers "You thieves!".
JASRAC sues Swan in the Niigata District Court for 5,500,000 Japanese Yen (approx. USD$46,000) for the past 10 years worth of licensing fees.
Swan reports that the first 5 years is only for the playing of recorded music everyday and the second 5 years is for the playing of recorded music everyday and for live performances performed an average of 3 times a week. Swan's turnover for the past 10 years is on average 3,500,000 Japanese Yen/year (approx. USD$29,000). Coffee is priced at 450 Japanese Yen (approx. $3.75) and tickets for live performances are 2000 Japanese Yen (approx USD$17).
June 2006: Both parties fail to reach an agreement in the Niigata District Court. An out of court settlement was reached for a total of 2,800,000 Japanese Yen (approx. USD$23,000).
Current Status: (May 2007) Swan is paying the licensing fees back to JASRAC in installments and has a live show every weekend.
Case 3: Desafinado
Business Type: Restaurant / Cafe Business URL: http://www.desafinado.jp/ Location: Wakayama City Number of Seats: 23 Lawsuit Type: Civil Sequence of Events:
June 2004: JASRAC sends Desafinado the initial invoice totaling 600,000 Japanese Yen (approx. USD$5000) for the previous 3 year's worth
of licensing fees. Desafinado say the bill is too high and refuse to pay.
JASRAC sends a second invoice totaling 1,800,000 Japanese Yen (approx. USD$15,000) and again they refuse to pay. The second bill was three times higher than the first one only because Desafinado refused to pay the first one.
April 2005: JASRAC takes Desafinado to court and the provisional disposition results in Desafinado's piano, microphone and an apartment belonging to the owner being seized.
30th January 2007: The ruling is passed down in favor of JASRAC. Desafinado must pay 1,918,318 Japanese Yen (approx. USD$16,000) to JASRAC for the total amount incurred plus interest. JASRAC's method of calculation is revealed to be (for places with no more than a total seating capacity of 60 seats) 20,000 Japanese Yen/month (approx. USD$165) up until March 2004 and from then on increased to 27,000 Japanese Yen/month (approx. USD$225).
Current Status: (May 2007) Desafinado is appealing the decision but decided to pay the 1,918,318 Japanese Yen (approx. USD$16,000) in the meantime in order to continue live performances. Desafinado has live performances every month but only performs songs from the public domain and none that JASRAC controls the rights to. Recently, Desafinado has been a full house with supporters every month.
This article has details about a recent JASRAC incident in Japan. Masami Toyoda, the 73 year old owner of a live music club was arrested, at JASRAC's demand, for having live performances of The Beatles songs at his club.
Recently a 73 year old man was arrested for allowing live performances in is resturant without paying required licensing fees to JASRAC. In the past, arrests for this kind of minor copyright infringement were unheard of. However JASRAC has publicly stated that there is no other way to deal with recent cases.
Songs performed included "Here, There, and Everywhere", and "Liverpool and All the World" by The Beatles using a harmonica and piano.
JASRAC claimed the performances had been occurring since 1985 despite repeated warnings that a license was required. In 2001, JASRAC took the bar owner to court and won their case. The court ruling banned the bar from performing live music. Performances continued, so JASRAC claimed they had no choice but to file criminal charges against the bar owner.
JASRAC says 146 criminal complaints have been made since 1948, and most are resolved without a court ruling.
This has resulted in widespread criticism of JASRAC on Internet discussion boards. Many people think that this treatment was excessive, and do not see how the bar owners actions could have harmed the music industry.
Daisuke Tsuda, technology and music journalist, states that the current system of fee collection for live music is vague and lacks transparency. His opinion is that a better system must be created.
This article has further details about the alleged performances, and when they took place.
An elderly Japanese man has been arrested for 33 performances of The Beatles songs without having paid JASRAC licensing fees. Songs included "Here, There, and Everywhere", and "Yesterday". He performed the songs with harmonica, and a female pianist between August and September 2006.
This website hosts a copy of the original Mainichi News report on the arrest of Masami Toyoda for performances of The Beatles songs.
A 73 year old man was recently arrested for illegally performing songs by The Beatles and other artists at his bar in Tokyo. According to the police, he was arrested on suspicion of breaking copyright law. He has reportedly admitted the allegations.
The bar owner was charged with performing 33 songs including "Here, There and Everywhere", and "Yesterday" - songs for which JASRAC manages royalties. He allegedly performed the songs with a Harmonica, and was accompanied by a female pianist. The JASRAC charges relate to the period between August and September 2006.
JASRAC obtained a provisional injunction in 2001 in order to stop the performances. However the bar owner continued live music shows despite repeated warnings from JASRAC. Criminal charges were eventually laid, and resulted in his arrest and prosecution.
This article covers two other incidents where club owners were forced to pay retroactive fees. These clubs were "Daytrip" and "Jazz Mama" in Niigata, and Paretto, a cafe in Kyoto that is operated by a group that supports disabled people.
JASRAC's battle against non-paying Karaoke bars has increased their confidence in seeking fees from live music establishments. Recently, small bar owners
have received large invoiced for retroactive fee payments for live music performances. JASRAC has not demaded fees from such places in the past. JASRAC claim has always attempted to collect fees from these places, but postponed collection during a 20 year legal battle with Karaoke bars. Some bar owners have dismissed the outrageous bills as fraud, but after receiving multiple invoices have decided to investigate, revealing the bills are genuine. For some bar owners, it has become aparrant that the fee calculation process is unclear. JASRAC refuses to explain how calculations are made, and also refuses to negotiate. Some bar owners have refused to pay due to lack of information, and as a result, have been taken to court. JASRAC have publicly stated that lawsuits are an effective method of spreading their message. This hard-line attitude is causing some establishments to close down. These business usually make little profit.
Jazz Mama in Niigata closed down after being forced to pay 3,000,000 yen for 10 years worth of retroactive fees. The Paretto cafe in Kyoto is operated by a group that supports disabled people. This establishment also received a large invoice in 2006. JASRAC have stated they expect the establishment to pay as much as they can, even if the actual bill can't be paid.
JASRAC claims fees are decided based on the number of liver performances per month, and the seating capacity. Bar owners, however, are unhappy with their calculation process and it's inconsistent. After winning the court battle with nationwide Karaoke bars, JASRAC now collects fees from 87% of these bars. It collects fees from 60% of dance schools, approximately 50% of live music clubs, and only a small number of DJ clubs and discos.
This blog article outlines JASRAC's activities against another bar.
Desafinado, a bar in Wakayama prefecture, has also been prosecuted. Originally, the court ruled that Desafindo could continue playing classic or non-copyrighted material. However, JASRAC appealed this decision and demanded the removal of the bar's piano due to the possibility of future infringement. The court ruled in JASRAC's favor. The owner has refused to remove the piano, claims they do not play any copyrighted material, and has started a petition in an attempt to have Japanese copyright law reviewed.
Go to the Japanese Page
Please send us your opinions to ilovemusicatlmi.net (change 'at' to @) and we will make a page of received comments in the near future..