Beyond Economics: Understanding Japan's Robust Moral Rights for Creators

While economic rights form the commercial backbone of copyright, providing creators with control over the reproduction and distribution of their works, many legal systems also recognize a distinct set of entitlements known as "moral rights." These rights safeguard the personal, non-economic link between authors and their creations. Japan's Copyright Act (著作権法 - Chosakken-hō) offers a particularly strong and detailed framework for moral rights, or chosakusha jinkakuken (著作者人格権), which co-exist with and operate independently of the economic aspects of copyright. Understanding these rights is crucial for anyone dealing with creative works originating from or being used in Japan.

The Inherent Nature of Moral Rights in Japan

Under Japanese copyright law, moral rights are fundamentally personal to the author. Article 59 of the Act explicitly states that moral rights are exclusively personal to the author and cannot be assigned or transferred. This inalienability means that an author cannot sell or give away their moral rights in the same way they can transfer their economic copyrights.

Consequently, moral rights are generally not inheritable by an author's heirs in the typical sense, although, as discussed later, Japanese law does provide for the post-mortem protection of certain personal interests of the author. Moral rights technically extinguish upon the author's death (or upon the dissolution of a juridical person, though moral rights primarily attach to human creators who are the actual source of the "thoughts or sentiments" expressed).

The Japanese Copyright Act primarily delineates three core moral rights: the right of making a work public, the right of attribution (name indication), and the right to integrity.

1. The Right of Making Public (公表権 - kōhyōken) - Article 18

The right of making public, as defined in Article 18, grants the author the exclusive authority to decide whether, when, and how to make their unpublished work available to the public. This includes offering or presenting the work to the public by means such as publication, performance, broadcast, or online transmission.

Rationale and Scope:
The underlying purpose of this right is to protect the author's personal decision regarding the work's debut. An author might deem a work unfinished, not yet ready for public scrutiny, or may have personal reasons for withholding it. Premature or undesired disclosure by a third party could not only contradict the author's artistic judgment but also potentially harm their reputation if an incomplete or unpolished work is presented.

This right extends not only to the original unpublished work but also to derivative works created based on that unpublished original (Article 18, Paragraph 1, latter part). For example, if an unpublished novel is adapted into a film, the novelist retains the right to decide on the making public of that film, as it embodies their original, unpublished expression.

What Constitutes "Unpublished"?
A work is considered "unpublished" if it has not yet been "made public" as defined in Articles 3 and 4 of the Copyright Act. A work is generally deemed "made public" if:

• A reasonable number of copies, sufficient to meet public demand according to the nature of the work, have been reproduced and distributed (Article 4, Paragraph 1).
• It has been publicly performed, broadcast, presented, or exhibited by the copyright holder or with their authorization (Article 4, Paragraph 1).
• It has been made transmittable via automatic public transmission (e.g., uploaded to a publicly accessible server) by the copyright holder or with their authorization (Article 4, Paragraph 2).

Case law provides examples: a collection of poems included in a school yearbook distributed to over 300 students and faculty was considered "made public," so a subsequent offering of one of these poems by a third party did not infringe the author's right of making public (Tokyo District Court, February 29, 2000, in a case sometimes referred to as the Nakata Hidetoshi case, though the plaintiff was not the famous footballer). Similarly, an internal screening of a film within a railway bureau for a substantial number of employees was deemed a "making public," precluding a later claim based on the right of making public when the film was broadcast (Tokyo District Court, February 28, 1977, Kyūshū Zakki case).

Limitations and Presumption of Consent (Article 18, Paragraph 2):
The author's consent to making the work public is presumed in certain situations:

• If the author has transferred the copyright of their unpublished work, they are presumed to have consented to the work being made public through the exercise of that copyright (e.g., by the assignee publishing it).
• If the author has transferred the physical original of their unpublished work of art or photograph, they are presumed to have consented to its public exhibition by means of that original.
• If copyright in an unpublished cinematographic work vests in the film producer under Article 29 (due to the author's agreement to participate in the film's production), the author is presumed to have consented to the work being made public through the exercise of that copyright.

These presumptions can be rebutted if the author proves a contrary intent. Additionally, there are specific limitations related to the disclosure of unpublished works held by governmental bodies under Japan's information disclosure laws (Article 18, Paragraphs 3 and 4).

2. The Right of Attribution / Name Indication (氏名表示権 - shimei hyōjiken) - Article 19

Article 19 grants authors the right to determine whether their name should be indicated on their work when it is offered or made available to the public, and if so, whether to use their true name (jitsumei - 実名), a pseudonym (henmei - 変名), or no name at all (anonymity - mumei - 無名).

Rationale and Scope:
This right protects an author's interest in being associated with their creation in the manner they prefer, or conversely, in remaining anonymous or using a pen name for personal or professional reasons. Forcing an author to be identified against their will, or misattributing authorship, can cause significant personal distress. The right applies to the original work and also to the indication of the original author's name when a derivative work is presented to the public (Article 19, Paragraph 1, latter part).

The indication must be "as author" (chosakusha mei to shite). Merely listing an individual's name in a staff roll or in an auxiliary capacity, without clearly identifying them as the author of the work in question, may not satisfy this right. The Tokyo District Court decision of April 25, 2000 (the Chigiregumo case), illustrates this. A scriptwriter's name appeared in the film staff credits within a novelization of the film, but not as the author of the original story for the novel itself; this was found to be an infringement of the scriptwriter's right of name indication regarding the novelization.

The right applies to indications "on the original work" itself (e.g., a painter's signature, a sculptor's mark) and "when the work is offered or made available to the public" (e.g., author's name on a book cover or title page, composer/lyricist credits on a CD).

Limitations on the Right of Attribution:

• Following Existing Indication (Article 19, Paragraph 2): If an author has already indicated their name on a work in a particular way, a third party using that work may generally follow that existing indication without infringing this right, unless the author has expressed a different preference. This also implies that if a work was originally published anonymously or pseudonymously, continued use in that manner is generally permissible.
• Permissible Omission (Article 19, Paragraph 3): The author's name may be omitted if, in light of the purpose and manner of exploiting the work, such omission is (i) unlikely to harm the author's interest in claiming authorship and (ii) is compatible with fair practice. Both conditions must typically be met. Examples might include the incidental use of numerous musical works as background music in a restaurant, where announcing each composer and lyricist would be impractical and unlikely to mislead anyone about authorship. However, courts have sometimes applied this limitation strictly. For instance, omitting author names from educational drill books, even if the original textbooks they were based on included them, was found to infringe this right, as there was no compelling reason for the omission and it was not considered fair practice (Tokyo District Court, May 28, 2004, Kokugo Doriru case).
• Information Disclosure Acts (Article 19, Paragraph 4): Similar to the right of making public, specific limitations apply when works are disclosed by governmental bodies under information disclosure laws.

3. The Right to Integrity (同一性保持権 - dōitsusei hojiken) - Article 20

Article 20, Paragraph 1 grants the author the right "to preserve the integrity of his work and its title," meaning they can object to any "modification, cutting, or other alteration (henkō, setsujo sonota no kaihen) thereof against his will."

Rationale and Scope:
This right protects the author's artistic vision and personal honor as embodied in their work. Unauthorized alterations can distort the work's meaning, misrepresent the author's intent, and potentially damage their reputation, even if the alteration could, from an objective standpoint, be seen as an "improvement." The author's subjective disapproval of the change is paramount.

An alteration is considered "against their will" (sono i ni hanshite) unless the author has consented to it. Consent can be explicit or, in some cases, implied. The scope of any consent given is critical; alterations exceeding the scope of consent constitute an infringement. For example, in the Tokyo District Court decision of October 26, 1998 (the Kyōryū Irasuto case), an illustrator had consented to the removal of a small pterosaur from the background of a dinosaur illustration. However, the user then also changed the overall color tone and modified the outline of the main Tyrannosaurus Rex. These unconsented changes were held to infringe the right to integrity.

Implied consent might be found based on custom or the circumstances of submission. In the Tokyo District Court judgment of August 29, 1997 (the Haiku Tensaku I case), a poet submitted a haiku to a magazine known for its practice of editorially correcting or improving submissions. By submitting without explicitly prohibiting alterations, the poet was deemed to have at least tacitly consented to reasonable editorial changes.

Some court decisions have also considered whether an alteration, from a societal perspective, harms the author's honor or reputation. The Tokyo District Court on August 30, 2000 (the Esukīsu case), found that minor cropping of an architectural sketch for magazine publication, which did not alter the substantive expression, was not an infringement as it was not considered socially to be a modification prejudicial to the author's honor. However, this approach is usually considered secondary to the author's subjective will, with such objective considerations perhaps better fitting within the "unavoidable modifications" exceptions discussed below.

The right to integrity does not apply if an alteration is so substantial that the essential expressive features of the original work are no longer perceivable in the modified version. In such a case, the new work is no longer considered the "same" work as the original for the purposes of this right (Supreme Court, March 28, 1980, Parody Montage Case; Supreme Court, July 17, 1998, Shokun! case, where a 38-line passage heavily summarized into 3 lines was found to no longer retain the original's expressive characteristics).

Even minor changes that do not alter the substantive meaning but affect the author's chosen mode of expression (e.g., changes to punctuation, kana usage, or line breaks) can potentially constitute "alterations" infringing the right to integrity, as seen in the Tokyo High Court decision of December 19, 1991 (the Hōsei Daigaku Kenshō Ronbun II case), though the ultimate permissibility will depend on the "unavoidable modifications" exceptions. The right also protects the integrity of the work's title.

Permissible Alterations (Article 20, Paragraph 2):
The Copyright Act provides specific exceptions where alterations do not infringe the right to integrity:

• (i) Modifications for Educational Use: Changes in wording or terminology in works used in school textbooks (under Articles 33(1), 33(4)) or for school broadcasts (under Article 34(1)) are permitted if unavoidable for educational purposes (e.g., updating archaic kanji to modern equivalents for young students).
• (ii) Modification of Architectural Works: Alterations to architectural works by way of extension, rebuilding, repair, or remodeling are generally permitted. This recognizes the functional and evolving nature of buildings. However, this exception is typically understood not to cover purely arbitrary aesthetic changes that are not related to the building's utility or necessary maintenance, as suggested by the Tokyo District Court decision of June 11, 2003 (the Noguchi Rūmu case). Some recent decisions, like the Osaka District Court decision of September 6, 2013 (the Shin Umeda Shiti Teien case), have shown some flexibility in applying this to substantial remodeling.
• (iii) Modifications to Computer Programs: Necessary modifications to enable a program to be used on a particular computer where it would otherwise be unusable, or to make the program more effective on that computer (e.g., debugging, patching, essential feature enhancements), are permitted. This reflects the functional nature of software.
• (iv) Other Unavoidable Modifications (やむを得ないと認められる改変 - yamu o enai to mitomerareru kaihen): This is a crucial catch-all exception for alterations, other than those above, which are "deemed unavoidable in light of the nature of the work as well as the purpose and manner of its exploitation." This provision allows for a balancing of interests, permitting minor or technically necessary alterations that do not unduly prejudice the author. Examples from case law include the trimming of a film's aspect ratio for television broadcast and the insertion of commercial breaks (Tokyo High Court, July 13, 1998, Suwīto Hōmu II case), or adding an eye-bar to a caricature in a critical publication to protect the depicted individual's privacy or honor (Tokyo High Court, April 25, 2000, Datsu Gōmanizumu Sengen II case). However, in the same Datsu Gōmanizumu case, altering the layout of manga panels in a way that changed the author's expressive intent was found not to be an unavoidable modification.

Protection Against Acts Prejudicial to Honor or Reputation (Article 113, Paragraph 6)

Separate from the right to integrity, Article 113, Paragraph 6 (note: paragraph numbering may change in subsequent legislative amendments; the provided source refers to Paragraph 6) states that exploiting a work in a manner prejudicial to the author's "honor" (meiyo) or "reputation" (seibō) is deemed to be an infringement of their moral rights.

This provision targets uses that, even without directly altering the work, damage the author's public standing. "Honor or reputation" here refers to the author's objective social evaluation, not their subjective feelings of offense (Supreme Court, May 30, 1986, Parody Montage II case). Drafters' examples included using a fine art nude painting as a sign for a pornography shop or using solemn religious music for a striptease performance. A more concrete application was seen in the Tokyo District Court decision of August 30, 1993 (the Mezame case), where a television drama adaptation significantly altered the critical feminist and anti-corporate themes of an author's original non-fiction work. This was held to be a use prejudicial to the author's established reputation as a writer active in women's rights and social criticism.

Post-Mortem Protection of Moral Interests (Article 60)

Although an author's moral rights are personal and extinguish upon their death, Japanese law provides for the continued protection of their personal interests. Article 60 prohibits any person offering or making a work available to the public from committing an act that would have constituted an infringement of the author's moral rights if the author were still alive.

This protection is not absolute. The prohibition does not apply if the act, considering its nature and extent, as well as changes in social circumstances and other conditions, is deemed not to contravene the deceased author's presumed will (Article 60 proviso). This allows for a degree of flexibility as societal norms and interpretations evolve over time.

The right to seek remedies for infringements under Article 60 (such as injunctions or measures to restore honor) is typically vested in specific family members of the deceased author (e.g., spouse, children, parents, grandchildren, grandparents, or siblings), as outlined in Article 116, Paragraph 1. The author also has the right to designate by will another person to enforce these post-mortem interests (Article 116, Paragraph 3).

Other Personal Interests

Beyond the core moral rights, the Copyright Act contains other provisions that protect an author's personal connection to their work, such as the author's right to make reasonable modifications when a publisher re-reproduces a work (Article 82, Paragraph 1, often termed shūsei zōgenken or right of modification/addition/deletion) and the author's right to terminate a publishing right if the work no longer aligns with their convictions, subject to compensating the publisher for normally expected damages (Article 84, Paragraph 3, known as tekkaiken or right of withdrawal).

Comparison with U.S. Moral Rights

The Japanese system of moral rights is considerably more extensive and applies more broadly than its U.S. counterpart:

• Scope: Japanese moral rights apply to virtually all types of copyrighted works. In contrast, federal moral rights in the U.S. under the Visual Artists Rights Act of 1990 (VARA) are limited to a narrow class of works of visual art (e.g., paintings, sculptures, limited edition photographs) and primarily grant rights of attribution and integrity.
• Inalienability: Japanese moral rights are strictly inalienable. VARA rights in the U.S. can be waived by the author in a signed written instrument but cannot be transferred.
• Waiver: While Japanese moral rights cannot be transferred, it is a common practice in Japan for authors to enter into contractual agreements where they consent not to exercise certain moral rights, or pre-approve certain categories of modifications. The precise legal scope and enforceability of broad, boilerplate waivers of moral rights can be complex and may depend on the specific circumstances and the nature of the consent given.

Conclusion

Japan's robust framework of moral rights underscores a deep respect for the personal and intellectual bond between creators and their works. These rights—of making public, attribution, and integrity, along with protections for honor, reputation, and post-mortem interests—operate independently of economic copyrights and demand careful consideration in any dealings involving Japanese copyrighted material. Unlike in jurisdictions with more limited moral rights protection, parties using or adapting works by Japanese authors must navigate not only the economic rights but also these potent, inalienable personal entitlements.