When businesses utilize creative works—be it images, text, music, or video—in their marketing, public relations, or other corporate communications, the primary legal focus often falls on securing the necessary economic rights, such as the license to reproduce or distribute. However, in Japan, as in many civil law jurisdictions, another crucial layer of rights, known as "moral rights" (著作者人格権 - chosakusha jinkakuken), provides authors with personal protections that extend beyond mere economic exploitation. These rights are deeply ingrained in Japanese copyright law and can present significant compliance challenges for companies if not properly understood and respected. A notable judgment from Japan's Intellectual Property High Court on December 23, Reiwa 6 (2024), concerning film subtitles, further illuminates the judiciary's stance on these vital authorial protections.

Understanding Moral Rights under the Japanese Copyright Act

Japanese copyright law (著作権法 - Chosakukenhō) grants authors a bundle of moral rights that are distinct from their economic rights. These moral rights are considered personal to the author, safeguarding their honor, reputation, and the personal link between them and their creations. Unlike economic rights, which can be licensed or assigned, moral rights are, as a fundamental principle (Article 59), inalienable – they cannot be transferred or given away by the author.

The three primary moral rights pertinent to corporate use of creative works are:

1. The Right of Making the Work Public (公表権 - Kōhyōken; Article 18): This grants the author the right to decide whether or not to publish an unpublished work, and if so, when and how it should be made public. For corporations, this means that if they commission a work, the creator retains the initial right to decide on its first publication unless otherwise agreed.
2. The Right of Determining the Indication of the Author's Name (氏名表示権 - Shimei Hyōjiken; Article 19): This is the author's right to decide whether their name (real name or pseudonym) should be displayed on the work, or if it should be published anonymously. If an author wishes to be credited, corporations must generally comply, and the form of attribution should also respect the author's intent.
3. The Right to Preserve the Integrity of the Work (同一性保持権 - Dōitsusei Hojiken; Article 20): This is often the most challenging moral right for businesses to navigate. It protects a work and its title against any alteration, cutting, or other modification that is contrary to the author's intention. This right aims to prevent uses that would distort the work or harm the author's honor or reputation.

Inalienability and Non-Exercise Agreements:

The inalienable nature of moral rights means that a simple contractual "waiver" of these rights is generally considered ineffective under Japanese law. However, in practice, it is common for contracts to include "non-exercise agreements" (不行使特約 - fukōshi tokuyaku). In these clauses, an author agrees not to exercise their moral rights against specific, clearly defined uses or modifications by the commissioning party or licensee. The enforceability and scope of such non-exercise agreements can be complex. While they are generally accepted for reasonable and anticipated modifications, they are unlikely to be upheld if the modification is so extensive that it fundamentally changes the work or damages the author's honor or reputation.

Key Moral Rights in the Corporate Spotlight: Integrity and Attribution

For businesses engaging with creative content, the rights to preserve integrity and to indicate the author's name are particularly pertinent.

1. The Right to Preserve Integrity (同一性保持権):

This right means an author can object to changes made to their work without their consent. In a corporate context, this could apply to:

• Cropping photographs or illustrations.
• Editing video footage or musical scores.
• Altering text for advertising slogans or website copy.
• Changing the color scheme of a design.

The Japanese Copyright Act does provide certain exceptions where modifications are permissible without infringing this right (Article 20, Paragraph 2). These include, for example, modifications deemed unavoidable for educational purposes, alterations to architectural works, or changes necessary for the practical exploitation of a work, such as adapting software for a different operating system. However, these exceptions are generally construed narrowly by the courts. The underlying principle is that any modification should not go against the author's presumed intent or harm their reputation. The IP High Court's decision of December 23, Reiwa 6 (2024), underscores that the purpose of this right is to prevent the author's social reputation from being diminished through an altered form of expression.

2. The Right to Indicate Author's Name (氏名表示権):

This right obliges users of a work to credit the author in the manner the author desires (or as customarily practiced if no specific desire is expressed), unless the author explicitly wishes to remain anonymous or not be credited. For corporations, this means:

• Properly attributing photographers, illustrators, writers, translators, and other creators when their work is used.
• Understanding that even if a work is commissioned and paid for, the creator generally retains the right to be named.
• The December 23, Reiwa 6 (2024) IP High Court judgment emphasized that, particularly in fields where attribution is customary (such as crediting a film subtitle translator), the default position is that attribution is required unless the author has objectively indicated a contrary wish. The court framed the purpose of this right broadly, encompassing the protection of the author's honor, reputation, social evaluation, and personal satisfaction.

The IP High Court Judgment (December 23, Reiwa 6, 2024): A Case Study on Subtitle Integrity and Attribution

A significant ruling by Japan's Intellectual Property High Court on December 23, Reiwa 6 (2024), provides valuable insights into how these moral rights are interpreted and applied.

Brief Facts:
The plaintiff (X) was a professional translator who had created Japanese subtitle data for several foreign films. The defendants (Y1, Y2, and Y3) were companies involved in the production and distribution of these films on DVD and Blu-ray in Japan. X alleged that his moral rights were infringed because:

• On some of the released products, portions of the Japanese subtitles he created were missing (an infringement of the right to preserve integrity).
• On other products, he was not credited as the subtitle translator (an infringement of the right to indicate author's name).

The Court's Reasoning on the Right to Preserve Integrity:
The defendants argued, in part, that a software bug during the production process might have caused the omission of certain subtitle lines and that this should be considered an unavoidable modification. The IP High Court rejected this line of defense.

• It clarified that the right to preserve integrity is aimed at preventing the author's social reputation from being diminished due to the public presentation of an altered expression of their work.
• Even if the original, complete subtitle data was present on the master disc, if the version perceived by the consumer was altered (i.e., lines were missing), an infringement could still occur.
• Regarding the "software bug" claim, the court stated that if a technical glitch could lead to such alterations, then the defendants had a responsibility to check the final output and rectify any errors. The omission was therefore not considered an "unavoidable modification" as per the exceptions in Article 20(2)(iv) of the Copyright Act. The fact that the alteration might have been unintentional did not negate the infringement of the moral right itself, which focuses on the result perceived by the public.

The Court's Reasoning on the Right to Indicate Author's Name:
The defendants also contested the claim regarding the failure to credit X as the translator on some products.

• The IP High Court sided with the translator, emphasizing the general industry practice of crediting subtitle translators.
• It reasoned that the purpose of the right to indicate the author's name extends to protecting the author's honor, reputation, social evaluation, and sense of personal satisfaction derived from being associated with their work.
• Crucially, the court held that attribution is generally required unless the author objectively indicates a desire not to be named. The onus, therefore, appears to be on the user of the work to ascertain the author's wishes regarding attribution. Silence or lack of an explicit demand for credit from the author does not automatically permit omission.
• The judgment also suggested a degree of due diligence for distributors (even those not directly commissioning the translation). It noted that the distributor involved in sales had a responsibility to check whether the author's name was displayed (e.g., in end-credits) or to inquire with the producer if the author had indeed wished for no attribution.

This case demonstrates a robust judicial approach to protecting authors' moral rights, even in complex production and distribution chains.

Practical Implications for Corporate Communications in Japan

The principles underlying Japanese moral rights and the stance taken in cases like the IP High Court judgment have significant practical implications for any corporation using creative content in Japan:

1. Thorough Due Diligence for All Creative Works: Before incorporating any third-party creative material—photographs, illustrations, musical compositions, written text, video footage, translations, software code, etc.—into advertising campaigns, corporate websites, social media posts, product packaging, internal documents, or any other communication, a thorough review of rights is essential.
2. Crafting Clear Agreements with Creators:
   • Economic Rights: Secure clear, written licenses or assignments for the necessary economic rights (reproduction, distribution, public transmission, etc.), ensuring the scope of use, territory, and duration are well-defined.
   • Addressing Moral Rights: Given their inalienability, explicitly address moral rights. While a blanket "waiver" is generally ineffective, negotiate clear and specific "non-exercise agreements" (fukōshi tokuyaku) that detail anticipated and reasonable modifications to the work and the agreed-upon methods of attribution. The more specific the agreement regarding potential alterations, the stronger the company's position.
   • Attribution Preferences: Always confirm the creator's preference for attribution: their real name, a specific pseudonym, or if they prefer anonymity for a particular use. Document this preference.
3. Internal Review and Approval Processes:
   • Establish internal workflows for all corporate materials that utilize third-party creative works. This process should include a checkpoint to verify that all necessary rights have been cleared and that moral rights considerations have been addressed.
   • Educate marketing, PR, and product development teams about the importance of moral rights.
4. Caution with "Free," Stock, or AI-Generated Content:
   • Stock Content: Do not assume that "royalty-free" stock photos, music, or videos come without any moral rights considerations. The license terms for stock content must be scrutinized carefully. Many licenses still require attribution or place restrictions on substantial modifications.
   • "Free" Online Content: Using content found online under "free to use" claims can be risky. The original uploader may not have had the right to offer it freely, or specific attribution/modification conditions may apply. Verifying the true copyright status and any associated moral rights obligations is crucial. It has been noted that even when using "free materials," users of works without clear identification of rights still have a duty to avoid infringement if such a possibility exists.
   • AI-Generated Content: The authorship and moral rights associated with AI-generated content are complex and evolving areas of law globally, including in Japan. Companies using AI tools to create content should be aware of potential underlying rights in the data used to train the AI and the terms of service of the AI provider.
5. Modifications: Obtain Consent or Exercise Extreme Caution:
   • If any modification to a creative work is necessary, however minor it may seem (cropping, color changes, editing text, shortening music), it is always best practice to obtain the original author's explicit consent for that specific modification.
   • If prior consent for every minor change is impractical, ensure that the initial agreement or non-exercise clause clearly covers the types of modifications anticipated for the intended use.
   • Avoid any modifications that could be perceived as misrepresenting the original work's intent, damaging its artistic integrity, or harming the author's honor or reputation.
6. Attribution as a Standard Operating Procedure:
   • Unless an author has explicitly and verifiably requested anonymity or waived their right to be named for a specific use, providing clear, accurate, and appropriately placed attribution should be the default corporate policy.
7. Understanding the Risks of Infringement:
   • Infringement of moral rights can lead to serious legal consequences in Japan. These may include:
     • Injunctions: Demands to cease using the infringing material or to correct the work (e.g., by restoring its original form or adding proper attribution).
     • Damages: Compensation for harm to the author's reputation or for emotional distress.
     • Measures to Restore Honor/Reputation: Courts can order the infringing party to take measures to restore the author's honor or reputation, such as publishing an apology.
     • Reputational Damage to the Company: Being publicly accused of disrespecting creators' rights can significantly harm a company's brand image and goodwill.
   • Furthermore, while moral rights infringements are primarily civil matters, severe and willful infringement of copyright (including economic rights, which can be intertwined with how a work is presented) can also carry criminal penalties under Japanese law.

Conclusion

Moral rights under Japanese copyright law offer authors robust and personal protections that are distinct from, and in some ways stronger than, those found in jurisdictions with a more purely economic focus on copyright, such as the United States' limited approach under VARA. For international businesses, particularly those in creative industries, marketing, and communications, a nuanced understanding and proactive respect for these rights are not merely a matter of legal compliance but are also essential for building positive relationships with Japanese creators, upholding ethical standards, and safeguarding their own corporate reputation in the Japanese market. The IP High Court's consistent affirmation of these rights, as seen in the December 2024 judgment, signals that they will be diligently enforced. Therefore, careful due diligence, clearly drafted agreements, and respectful treatment of creative works are paramount.