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. Specifically, ‘retweeters bear the burden of confirming the image’s source, the author’s attribution, and the author’s consent’ before retweeting anything.
The judgment shows no appreciation for how Twitter works. Users can ordinarily do four things to a tweet: reply, retweet, like and share. These same functions are common to other popular social media platforms like Facebook and LinkedIn — all cause the original infringing content to display on other pages in its infringing form. Yet the Court’s solution is for users to conduct due diligence on everything they retweet. This requires a tripartite correspondence between the copyright owner, original tweeter and retweeter to confirm valid licences for each photo. The alternative? Don’t use Twitter.
The Court additionally suggested that Twitter users could avoid infringement by including a comment in the retweet encouraging users to click the image for the author’s name. Doing this would cement the retweeters’ liability in stone. Twitter treats a ‘retweet with a comment’ exactly the same as a new tweet altogether. Since this new retweet must include both the comment and all the original tweet’s content in the same box, Twitter will trim the images even further. By the Court’s own reasoning, users can avoid one infringement by committing a brand-new infringement.
The judgment is simply irreconcilable with technological reality. Retweets are ‘inline links’ and only display what they link exactly as it originally appeared. Twitter automatically processes the infringing ‘trimming’ in the initial tweet, not subsequent retweets — something only the dissenting judge acknowledged.
To a properly informed court, it would be clear that only the original tweeter had infringed and that retweeters are ill-positioned to verify the provenance of works they encounter online. This is something the Twitter Terms of Service specifically addresses, but which only one judge recognised.
Cases like this illustrate the next big roadblock for countries seeking to become internationally competitive in IP. Japan’s government expressly assumes strategic IP exploitation as pivotal in maintaining its position in the global economy. As the cabinet itself admits, this industrial competitiveness depends on judges improving their comprehension of technology.
For most developed nations, the focus has long been on patents. South Korea has maintained a dedicated patent court since 1998, as have Germany (since 1961), Switzerland (since 2009) and the United Kingdom (since 1980). An EU Unified Patent Court is still under negotiation and the United States has its Court of Appeals for the Federal Circuit in which more than half of cases are patent related.
This focus has been commercially justified. A steady stream of pharmaceutical, engineering and other scientific innovations require considerable aptitude in the hard sciences. In contrast, copyright has traditionally been viewed as a purely artistic domain. But increasingly, technological competency is required in all other forms of IP — copyright particularly. Photography, literature, movies and plenty of other creative works are primarily experienced through some device onscreen. Judges must therefore understand both the underlying technology and its role in the experience of copyrighted works if they are to produce rational and consistent jurisprudence.
In the race to become a leading IP-based nation, the most competitive nations will be those which consistently apply this competency beyond just patents. Japan already has the foundations for a competitive edge. Unlike the other specialist courts, the IPHC has jurisdiction over all forms of appellate IP matters. It shares access to the same technical advisors appointed by the Supreme Court, giving it technological know-how and the institutional capacity for consistent decision making as cases move up the appellate chain.
The skills, resources and institutional structuring to consistently make good decisions are already available in Japan. To excel, Japan’s courts must recognise their need in other areas of IP.
Timothy Magarry is a solicitor at DLA Piper Australia.
The views expressed in this article are entirely the author’s own and do not necessarily reflect the views of any organisation or institution.