Can I Modify a Work? Navigating the Right of Integrity (Doitsusei-Hojiken) in Japan

When adapting, localizing, or otherwise utilizing copyrighted works in Japan, businesses often encounter a set of author's rights that extend beyond purely economic considerations. Among the most significant of these are "moral rights" (著作者人格権 - chosakusha jinkaku-ken), and a particularly crucial component is the "right of integrity" (同一性保持権 - dōitsusei hoji-ken). This right, enshrined in Article 20, Paragraph 1 of the Japanese Copyright Act (著作権法 - Chosakuken-hō), grants authors the power to preserve their work and its title from alterations, cuts, or other modifications made against their will. Understanding the scope, limitations, and practical implications of this right is vital for any entity involved in modifying or presenting creative works in Japan.

The Essence of the Right of Integrity

The fundamental purpose of the right of integrity is to protect the author's personal and artistic bond with their creation. Unauthorized modifications can cause authors spiritual or emotional distress by presenting their work in a form that misrepresents their original intent, artistic vision, or skill. It ensures that the public perceives the work as the author conceived it. While some discussions link this right to safeguarding an author's social reputation, its core is the protection of the author's personal feelings and the integrity of the work itself, irrespective of any actual reputational damage or whether the author's name is even attached to the work.

Article 20(1) states: "The author shall have the right to preserve the integrity of his work and its title, and shall not be made to suffer any alteration, cut, or other modification thereof that is contrary to his will."

This means that any change to a work or its title, if against the author's wishes, can potentially infringe this right. The protection extends to the title because a title is often integral to the work's identity and the author's intent.

What Constitutes a "Modification" (改変 - Kaihen)?

Not every change made to a work will be considered an infringing "modification" under Article 20(1). The analysis hinges on whether the creative expression of the work has been altered in a way that could be contrary to the author's will.

• Focus on Creative Expression: The right of integrity safeguards the creative expression of the work. If the alleged changes do not affect the original creative aspects—for instance, if they only pertain to underlying ideas, facts, or purely functional elements that are not part of the copyrighted expression—the right of integrity is not implicated. The line here is similar to that drawn in assessing substantial similarity for copyright infringement: if the original creative expression is no longer present in the altered part, or if only ideas are shared, it may fall outside the scope of this right.
• Trivial or Expected Changes: Minor alterations that a reasonable author would typically not object to, or changes that are inherent in a specific use of the work, may not be considered infringing modifications. Examples from Japanese case law or legal interpretation include:
  • Correcting obvious typographical errors that do not change the meaning.
  • Changing the physical format without altering the substance of the creative expression, such as converting a 16mm color film to 8mm color film or transferring content from a CD-ROM to paper.
  • Very minor cropping of an image where essential creative elements are unaffected. The Esquisse case (Tokyo District Court, August 30, 2000) involved minor cropping of a sketch for publication and found it non-infringing in that context.
  • However, even seemingly small changes, such as altering punctuation or line breaks, can constitute an infringing modification if they affect the work's creative expression and are contrary to the author's intent. The Hosei University Prize Essay case (Tokyo High Court, December 19, 1991) found that omitting line breaks was an infringement.
• Significant Alterations: Any substantial change to the creative expression, even if it does not necessarily degrade the work's artistic quality, can be an infringing modification if made against the author's will. Examples include:
  • Changing a color image to black and white. The Mammoth 3DCG case (IP High Court, April 25, 2012) found infringement in such an instance.
  • Altering the panel layout of a manga when quoting it. This was an issue in the Datsu Gomanism Sengen case (Tokyo High Court, April 25, 2000).
  • Modifying the way a digital image is displayed, even if the underlying file is unchanged. The Retweet Case (IP High Court, April 25, 2018) addressed this.
• Modifications to the Title: The Act explicitly protects the title of the work alongside the work itself. Changing a title without the author's consent can be an infringement. For instance, in an old case, Who Manufactured the World War? (Tokyo District Court, December 7, 1935), changing the original title "Juli '14" was found to be an issue. More recent cases, such as one involving game title changes (Mainichi ga Splatter, Osaka District Court, August 30, 2001) and column title changes (Column Title Alteration, Tokyo District Court, June 25, 2015), have also affirmed infringement for title modifications.
• Contextual Changes and Non-Expressive Elements: Adding elements external to the work itself, which do not alter the work's expression but might change its perceived context, generally does not infringe the right of integrity. For example, inserting an advertisement postcard into a book or adding advertisements at the end of a book was found not to be a modification of the work itself in the Dale Carnegie case (Tokyo District Court, September 29, 2000). However, if such use damages the author's honor or reputation, a separate provision (Article 113(7)) regarding acts prejudicial to honor or reputation might apply.
• Physical Destruction vs. Modification: The destruction of the physical embodiment of a work (e.g., a painting or sculpture) is generally not considered a "modification" under Article 20(1), unless the act of destruction is itself presented as an altered form of the work or if it specifically impairs or distorts the expressive elements in a way that is then publicly presented. This is a complex area where property rights over the physical object intersect with moral rights. The Noguchi Room case (Tokyo District Court, June 11, 2003), which involved the relocation and alteration of an architectural work incorporating sculptures, found a "modification" but ultimately deemed it permissible under an exception. The prevailing view is that complete destruction that leaves no altered "work" to be perceived does not trigger Article 20(1), as the right protects the integrity of the expression, not the physical medium itself.

Statutory Exceptions to the Right of Integrity (Article 20(2))

Recognizing that a strict application of the right of integrity could unduly hinder legitimate uses of works, Article 20(2) provides several exceptions where modifications are permissible even without the author's express consent:

1. Modifications for School Education (Article 20(2)(i)):
   Changes necessary for use in school education, such as altering orthography (e.g., from old Japanese kana to modern kana, or adding furigana to Chinese characters) or adapting expressions deemed unsuitable for a particular educational level, are permitted. However, this exception is for "unavoidable" changes; it does not grant a free license to alter works simply because they are used in education. If a work is fundamentally unsuitable due to its expression, the alternative is often to choose a different work rather than extensively modify it.
2. Modifications to Architectural Works (Article 20(2)(ii)):
   Modifications made by way of extension, rebuilding, repairing, or remodeling of an architectural work are permitted. This balances the architect's moral rights with the practical needs of the building's owner and users. The modifications should generally be for economic or practical reasons rather than purely aesthetic whims that disregard the original design intent.
3. Modifications to Computer Programs (Article 20(2)(iii)):
   Necessary modifications to enable a computer program to be used on a particular computer where it would otherwise be unusable, or to make the program more effective for use on that computer, are permitted. This is a broad exception reflecting the functional nature of software and the frequent need for updates, bug fixes, and compatibility adjustments. (This is discussed in more detail in the context of computer program copyrights).
4. Other Unavoidable Modifications (Article 20(2)(iv)):
   This is a general, catch-all exception for "any modification other than those listed in the preceding three items, which is found unavoidable in light of the nature of a work as well as the purpose and manner of its exploitation".
   • Traditional Interpretation: Historically, this clause was interpreted quite narrowly, often requiring a level of necessity comparable to the specific exceptions in items (i) to (iii).
   • Recent, More Flexible Interpretation: More recent scholarly views and some judicial trends suggest a more flexible application of this clause, allowing for a balancing of the author's interest in integrity against the legitimate interests of users and the societal benefit of allowing certain modifications. This approach recognizes that in a dynamic technological and cultural environment, some degree of adaptation is often necessary for works to remain accessible and relevant. This clause could potentially be applied to situations like:
     • Necessary alterations when adapting a work for a different medium or platform.
     • Certain types of parody, where modification is inherent to the form.
     • Modifications made in a purely private sphere that have no public impact (though this is debated, especially after the Tokimeki Memorial Special Disc case (Supreme Court, February 13, 2001), which found moral rights infringement for private game modifications ).

The application of Article 20(2)(iv) involves a case-by-case assessment of the specific work, the nature of the modification, the purpose of the use, and whether the modification is truly "unavoidable" in that context.

The Interplay with Adaptation Rights and Contractual Agreements

Moral rights, including the right of integrity, are inalienable (Article 59). This means an author cannot transfer these rights to another party. The question then arises: can an author "waive" their right of integrity or agree not to exercise it?

• Complete Waiver: A complete, blanket waiver of all future moral rights is generally considered invalid in Japan, as it would contravene the principle of inalienability.
• Agreements Not to Exercise (不行使特約 - Fukōshi Tokuyaku): It is common practice, particularly in commercial dealings, for authors to agree not to exercise their right of integrity with respect to specific, foreseeable modifications that are necessary for a particular exploitation of the work. For example, when an author licenses the adaptation of their novel into a film, it's understood that some changes will be required.
  • Validity and Scope: The validity of such non-exercise agreements often depends on their specificity. A broad agreement not to exercise the right of integrity for any modification might be viewed as tantamount to an invalid waiver. However, agreements concerning well-defined types of modifications, especially those that do not fundamentally distort the work or harm the author's honor, are more likely to be upheld.
  • Implied Consent: Consent to certain modifications may be implied from the circumstances of a contract. If an author grants the right to adapt their work (a an economic right under Article 27), this often implies consent to the kinds of changes reasonably necessary to effect that adaptation.
• The Role of Article 20(2)(iv): The "unavoidable modifications" exception in Article 20(2)(iv) can also provide a legal basis for permissible changes in the context of an authorized adaptation, even if a specific non-exercise agreement is not perfectly clear or if the adaptation right has been subsequently transferred and the new rights holder is not privy to the original agreement. This provision allows courts to balance the interests involved.

Use of Modified Works and Liability

If a work is modified in a way that infringes the author's right of integrity, the act of modification itself is the primary infringement. What about the subsequent use or distribution of such an unlawfully modified work?

Article 20(1) directly addresses the "modification" itself. However, the distribution or public presentation of an unlawfully modified work can also have implications:

• Deemed Infringement for Import/Distribution: Article 113(1) deems certain acts as infringements of moral rights (and copyright). Specifically, importing for distribution, or knowingly distributing (or possessing for distribution) objects made by an act that would have constituted an infringement of (among others) the right of integrity if done in Japan, is considered an infringement. This helps control the circulation of unlawfully altered works.
• Reproduction of Altered Work as a New Alteration: Some court decisions, like the Sōka Gakkai Web Photo case (Tokyo District Court, April 12, 2007), have suggested that reproducing an already altered work (e.g., uploading an altered image to a server for public transmission) can itself be considered a new act of "modification" subject to the right of integrity, especially if the party doing the reproduction is aware of and perpetuates the alteration. This extends the reach of the right beyond the initial act of alteration.

Consequences of Infringing the Right of Integrity

Infringement of the right of integrity can lead to several remedies for the author:

1. Injunctive Relief (Article 112): The author can demand the cessation of the modification or the infringing use of the modified work, as well as preventative measures.
2. Damages (Civil Code Article 709): Compensation for harm suffered, which often includes damages for mental distress.
3. Measures to Restore Honor or Reputation (Article 115): The author may demand apologies, corrections, or other measures to restore their honor or reputation if it has been harmed by the infringing modification.

Practical Implications for Businesses

For businesses that create, commission, license, or use copyrighted works in Japan, navigating the right of integrity requires careful attention:

• Clear Contractual Terms: When commissioning works or acquiring rights, contracts should clearly address the extent to which modifications are permitted. While full waivers are problematic, specific agreements not to exercise the right of integrity for defined and reasonable alterations are advisable.
• Consultation with Authors: Where feasible, especially for significant modifications, consulting with the original author and obtaining their specific consent is the safest approach.
• Internal Guidelines: Companies should have internal guidelines and review processes for any proposed modifications to third-party copyrighted works to ensure compliance with authors' moral rights.
• Understanding Exceptions: Familiarize yourself with the statutory exceptions under Article 20(2), particularly the flexible "unavoidable modifications" clause, but be aware that its application is fact-specific.
• Due Diligence: When acquiring rights to already modified or adapted works, conduct due diligence to ascertain whether the original author consented to the modifications.

Conclusion

The right of integrity is a powerful and deeply personal right afforded to authors under Japanese copyright law. It underscores the principle that an author's connection to their work extends beyond economic exploitation to the preservation of its essential character. For businesses, this means that any modification, however minor it may seem from a purely commercial or functional perspective, must be considered through the lens of the author's potential objections. A proactive, respectful, and contractually sound approach to dealing with the right of integrity is essential for smooth operations and avoiding potentially costly legal disputes in Japan's creative landscape.