Copyright Act Article 112: Right to Demand Injunction

The right to demand the cessation of infringement (Article 112, Paragraph 1 of the Copyright Act) and the right to demand the prevention of infringement (Article 112, Paragraph 2 of the Copyright Act) provided for in Article 112 of the Copyright Act are collectively referred to as the right to demand an injunction.

Specifically, the right to demand an injunction is the right to demand the elimination of infringing acts in a state where infringement is occurring (Article 112, Paragraph 1 of the Copyright Act), and the right to demand measures to prevent infringement from occurring before it takes place (Article 112, Paragraph 2 of the Copyright Act). This right to demand an injunction is a right that can be exercised even if the infringer has no intent or negligence.

Moral rights of authors, copyrights, publication rights, moral rights of performers, and neighboring rights possess the nature of real rights; therefore, the right to demand an injunction, which is recognized only for real rights, is granted (Article 112 of the Copyright Act) (in the case of claims, the right to demand an injunction is not recognized). Those granted the right to demand an injunction are authors, copyright holders, publication right holders, performers, or neighboring right holders.

Beyond copyright, the right to demand an injunction is also recognized for patent rights, utility model rights, design rights, and trademark rights, which possess the nature of real rights.

Here, even if a person is not a copyright holder, a person who has received a trust transfer or delegation of copyright from a copyright holder pursuant to the provisions of law may, as an exception, exercise the right to demand an injunction. A specific example of a person who has received such a trust transfer or delegation of copyright is JASRAC.

A demand for cessation of infringement (Article 112, Paragraph 1 of the Copyright Act) presupposes that an infringing act is being committed at the time the right to demand cessation of infringement is exercised.

I will explain using a specific example. For instance, if 10,000 pirated copies (dead copies) have been produced, the reproduction is already complete, so a demand for cessation of infringement based on infringement of the right of reproduction (Article 112, Paragraph 1 of the Copyright Act) cannot be made. However, since the infringing act of producing 10,000 pirated copies (dead copies) has been committed in the past, a claim for damages is possible.
In this case, if those pirated copies are possessed for the purpose of sale (purpose of distribution), such possession for the purpose of distribution constitutes copyright infringement (Article 113, Paragraph 1, Item 2 of the Copyright Act), so a demand for prevention of infringement (Article 112, Paragraph 2 of the Copyright Act) (demanding the cessation of possession) can be made. This is the same even if there is a risk of distribution in the future (Article 113, Paragraph 1, Item 2 of the Copyright Act).

Note that the execution of a final judgment allowing a demand for an injunction is carried out through indirect compulsory execution (Article 172 of the Civil Execution Act) or substitute execution (Article 171 of the Civil Execution Act).

・Copyright Act Article 112: Right to Demand Injunction

●Bibliography
・Ryu Takabayashi (Author), "Standard Copyright Law, 4th Edition" (Yuhikaku, 2019)

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