An Author's Moral Rights in Japan: Understanding Rights of Publication, Attribution, Integrity, and Post-Mortem Protection

Beyond the economic rights that allow authors to control the copying and distribution of their works (collectively known as copyright or chosakuken), Japanese copyright law provides a distinct and robust set of protections known as "moral rights" (chosakusha jinkaku ken). These rights safeguard the personal and spiritual bond between an author and their creation. They are considered inalienable—meaning they cannot be sold or transferred—and they persist even if the economic copyrights are assigned to someone else. Understanding these moral rights, including the right of making public, the right of attribution, the right of integrity, and even how an author's personal interests are protected after their death, is crucial for anyone creating, using, or adapting copyrighted works in Japan.

The Right of Making Public (Kōhyō Ken) - Controlling First Disclosure (Copyright Act Article 18)

An author has the fundamental right to decide whether, when, and how their unpublished work is first made available to the public. This is the "right of making public." Once a work has been lawfully made public with the author's consent, this particular moral right is generally considered fulfilled for that work.

• What constitutes "unpublished"? A work that has not yet been "made public."
• What is "making public" (kōhyō)? Under Article 4 of the Copyright Act, this can occur through various means, including:
  • "Issuance" (hakkō): Distributing a sufficient number of copies to satisfy the reasonable demands of the public (Article 3). For example, in the Nakata Hidetoshi Case (Tokyo District Court, February 29, 2000), the distribution of over 300 copies of a school literary collection to graduates and teachers was deemed an "issuance" and thus a "making public" of the works therein. Distributing, say, 100 copies of a self-published poetry booklet to all members of a large university club could similarly qualify as "making public," extinguishing the moral right of first publication for those poems.
  • Public presentation, performance, screening, or transmission by the copyright holder or with their authorization.

Imagine a student author, "Q," writes a collection of English poems and distributes a booklet containing them to all 100 members of their university tennis club. If Q later gives one of these poems, "Tea for Two," to a friend, "B," implying it's a new, personal creation, B subsequently translating and publishing this poem online would likely not infringe Q's moral right to make the translation public for the first time, because the original English poem itself was already "made public" through the distribution to the club. While Q retains economic rights over the translation (as a derivative work), the specific moral right of first publication for "Tea for Two" in its essence has been exercised. Article 18(1) states this right also applies to derivative works based on the original, but generally only if the original itself was unpublished.

The Right of Attribution (Determining Indication of Name - Shimei Hyōji Ken) - Article 19

Authors have the right to decide whether their name is displayed on their work when it is offered or presented to the public, what name to use (their real name, a pseudonym, or to remain anonymous), and how it is displayed.

• Following Author's Existing Indication (Art. 19(2)): Unless the author has expressed a different intention, a person using the work may indicate the author's name in the manner already adopted by the author in connection with the original work.
• Application to Derivative Works (Art. 19(1), latter part): When a derivative work (like a translation) is made public, the name of the author of the original work should also be displayed, typically in the way they originally indicated it.

In our scenario, if Q published "Tea for Two" under the pseudonym "by Q," and B later publishes her Japanese translation online crediting it as "by Q, translated by B," this manner of attribution would generally comply with Q's right of attribution for the original work as it appears in the derivative.

The Right of Integrity (Dōitsusei Hoji Ken) - Article 20

This is one of the most significant moral rights in Japan. It grants the author the right to preserve the integrity of their work and its title against any modification, cutting, or other alteration that is "contrary to their will" (sono i ni hanshite). This right protects the author's artistic vision and personal honor as embodied in the work.

Even if a use is permitted under an economic rights exception (e.g., a translation made for the purpose of lawful quotation), it can still infringe the right of integrity if the alteration is against the author's wishes and not covered by a specific exception to the right of integrity. Article 50 of the Copyright Act explicitly states that limitations on economic rights do not affect moral rights.

Exceptions to the Right of Integrity (Art. 20(2)):
The law recognizes that some alterations are unavoidable or necessary. Article 20(2) lists specific exceptions, including:

• Modifications deemed unavoidable for school education.
• Modifications of architectural works (e.g., extensions, renovations).
• Modifications necessary to enable the use of a work on a particular computer system where it would otherwise be unusable or significantly more difficult to use (e.g., technical adaptations of software, but not altering its fundamental purpose or expression).
• Other modifications "deemed unavoidable in light of the nature of the work as well as the purpose and manner of its exploitation" (Art. 20(2)(iv)). This is a general, catch-all exception but is often interpreted narrowly by Japanese courts.

Application to Translation:
If B translates Q's English poem "Tea for Two" into Japanese for inclusion in a critical essay, this act of translation is an "alteration." Q might feel that the translation, even if accurate in literal meaning, has changed the "atmosphere" or "spirit" of his original English poem.

• Economic Right Aspect: B's translation and inclusion in her critical essay might be a permissible quotation under Article 32 (economic rights), and Article 43(ii) allows "translation" as a method of quotation.
• Moral Right Aspect: Despite the economic rights exception, the translation can still infringe Q's right of integrity if it is deemed "contrary to his will" and not an "unavoidable alteration" under Article 20(2)(iv). Whether a translation for critical review is "unavoidable" is debatable. If the translation is faithful and accurately conveys the essence of the original, it might be permissible. However, if Q's feeling that the "atmosphere changed" is objectively supported by evidence that the translation significantly misrepresents or distorts the poem's core artistic qualities or meaning, an infringement of the right of integrity is more likely. The author's subjective displeasure is a starting point, but courts will often look for some objective basis for the alleged harm to the work's integrity.

Deemed Infringement of Moral Rights (Copyright Act Article 113(11))

Separate from direct infringements of the specific moral rights, Article 113(11) (formerly Art. 113(6) in older versions of the Act) states that an act of exploiting a work "in a manner prejudicial to the honor or reputation of the author shall be deemed to be an act of infringement of his moral rights."

This provision can apply even if the work itself has not been altered. It concerns the context or manner of use. The classic example often cited by commentators is using an artistic nude photograph as a signboard for a strip club. The photograph itself isn't changed, but the manner of its use could be deemed prejudicial to the photographer's honor or reputation.

In the scenario where B writes a "scathing critique" of Q's poem "Tea for Two," could this trigger Article 113(11)?

• "Honor or reputation" here generally refers to the author's societal or professional standing, not just their subjective feelings.
• Legitimate (even harsh) criticism or parody is generally permissible and not considered prejudicial in this sense. The PDF commentary for a similar situation (Topic 17) notes that using a work for criticism or review is usually acceptable.
• For Article 113(11) to apply to criticism, the criticism would likely have to be coupled with a truly derogatory or defamatory context of use that goes beyond mere negative review and into the realm of damaging the author's public standing. Merely being unhappy with a negative review is typically not enough.

Echoes from the Past: Protection of Personal Interests After the Author's Death (Copyright Act Article 60)

Moral rights, being deeply personal to the author, technically extinguish upon the author's death (Article 59 states they are "exclusively personal"). However, Japanese copyright law recognizes that an author's personal connection to their work and their reputation warrant protection even after they are gone.

Article 60 provides this post-mortem protection. It prohibits any person who offers or presents the author's work to the public after the author's death from committing an act that "would be prejudicial to the moral rights of the author if he/she were alive."

• Who Can Enforce This? The deceased author's surviving family members (specifically, spouse, children, parents, grandchildren, grandparents, or siblings, in that order of priority generally) can seek remedies, primarily injunctions against such acts (Article 116). They can also demand measures to restore the author's honor or reputation if appropriate (Article 115).
• The Proviso – Balancing Interests (Art. 60, proviso): This prohibition is not absolute. It does not apply if the act in question is deemed "not to be contrary to the [deceased] author's will in light of the nature and extent of the act as well as changes in social circumstances and other conditions." This proviso allows for a balancing of the deceased author's presumed intentions against later societal needs or legitimate uses.

Application to the Posthumous Diary Scenario:
Imagine Author Q (our student poet) becomes a renowned literary figure. Sixty years after his death, his unpublished personal diaries are discovered. These diaries contain sensitive personal reflections but are also of immense value for literary and historical research. A researcher, C, obtains these diaries (the copyright in which has expired due to the passage of time since Q's death) and publishes excerpts in a scholarly research book. Q's surviving grandson, D, objects, feeling that the publication of these private thoughts harms his grandfather's carefully cultivated public image.

• Potential Infringement under Art. 60: Making an unpublished work public (the diaries) would have infringed Q's right of making public (Art. 18) if he were alive. Thus, it's an act covered by the main prohibition in Art. 60.
• Applying the Proviso: The key is whether publishing the diary excerpts now, so long after Q's death, for a legitimate research purpose, can be considered "not contrary to Q's presumed will" given the circumstances.
  • Factors in favor of permissibility:
    • The significant passage of time (60 years post-mortem).
    • The high scholarly and historical value of the diaries of a "renowned literary figure."
    • The purpose of use (academic research and publication, not sensationalism).
    • "Changes in social circumstances" might include a greater societal acceptance of, or interest in, understanding the private lives of public figures for historical context.
  • The Mishima Yukio Letters Case (Tokyo High Court, May 23, 2000) found that publishing unpublished letters of a famous deceased author could indeed infringe Art. 60 interests. However, each case depends on its facts, and the strength of the "research value" and the "passage of time" arguments for the diary would be critical in assessing the Art. 60 proviso. If the publication is done responsibly within a scholarly context, it's strongly arguable that it would fall under the proviso and be permissible.

Conclusion: The Enduring Personal Connection

Moral rights are a distinctive and powerful feature of Japanese copyright law, underscoring a deep respect for the author's personal and spiritual bond with their creative output. These rights—to control first publication, to be named, and to protect the work's integrity—are not mere adjuncts to economic copyright; they stand independently and are fiercely protected. Even after an author's death and the expiration of economic copyrights, Article 60 ensures that their personal legacy and the integrity of their works continue to receive a measure of protection, balanced against evolving societal interests. For anyone creating, licensing, adapting, or publicly using copyrighted works in Japan, a keen awareness of and respect for these enduring moral rights is not just a matter of good practice, but a legal imperative.