Moral Rights of Authors in Japan: What are They and Can They Be Waived?

Beyond the economic rights that allow authors to control the commercial exploitation of their works, Japanese copyright law provides a distinct and robust set of protections known as "author's moral rights" (著作者人格権 - chosakusha jinkakuken). These rights safeguard the personal, spiritual, and reputational link between an author and their creative output. Understanding moral rights is crucial, as they operate independently of economic rights and carry significant implications for how works can be used and modified.

The Dual Nature of Rights: Economic and Moral

Under Article 17, Paragraph 1 of the Japanese Copyright Act, an author, upon creating a work, generally acquires two categories of rights:

1. Copyright (著作権 - chosakuken): These are the economic rights, such as the right of reproduction, public transmission, and adaptation, which can be transferred, licensed, or inherited.
2. Author's Moral Rights (著作者人格権 - chosakusha jinkakuken): These rights protect the author's personal connection to their work.

Key Characteristics of Author's Moral Rights

Author's moral rights in Japan possess several defining characteristics:

• Inalienability (Article 59): Moral rights are exclusively personal to the author (isshin senzoku-sei 一身専属性). This means they cannot be assigned, transferred, or sold. Even if an author transfers their entire copyright (all economic rights) to another party, such as a publisher or producer, the moral rights remain with the author. They also cannot be inherited in the same way economic rights can; they generally extinguish upon the author's death (though post-mortem protections for the author's personal interests exist, as discussed later).
• Non-Waiver (General Principle): Given their inalienable and personal nature, a general, blanket waiver of all future moral rights is typically considered invalid or highly problematic. However, this doesn't mean an author can never consent to specific actions that might otherwise affect their moral rights. For example, an author can agree to specific modifications of their work, which would relate to their right of integrity. Agreements not to exercise moral rights (fukōshi tokuyaku 不行使特約) are sometimes sought, particularly when authorizing adaptations, but their enforceability can be complex, especially if they are overly broad or attempt to negate the core of the moral right.
• Independence from Economic Rights (Article 50): Limitations or exceptions that apply to economic rights (e.g., permission to reproduce a work for private use or educational purposes) do not automatically extend to limit moral rights. If a use is permitted under a copyright limitation, those using the work must still respect the author's moral rights, unless a specific exception to the moral right itself also applies (e.g., certain "unavoidable modifications" under the right of integrity).

The Specific Moral Rights Granted by the Act

Japanese copyright law enumerates three primary moral rights:

1. The Right of Making the Work Public (公表権 - Kōhyōken) (Article 18)

This right grants the author the exclusive authority to decide whether or not to make public a work that has not yet been made public. It also includes the right to determine the time and method of its first publication. If an original work is unpublished, this right also extends to the making public of a secondary work derived from it.

The right of making public generally extinguishes once the work has been lawfully made public with the author's consent. If a work is made public without the author's consent, it is still treated as an "unpublished work" for the purposes of this right.

There are situations where consent to publication is presumed under Article 18, Paragraph 2. For example:

• When the author has transferred the copyright in their unpublished work.
• When the author has transferred the original of their unpublished artistic or photographic work.
• When the copyright in a cinematographic work vests in the film producer under Article 29 (the "participation promise" rule).
  This presumption can generally be overridden by a specific contractual stipulation to the contrary.

The Tokyo High Court decision in the Mishima Yukio Letters Case (May 23, 2000) involved the unauthorized publication of personal letters from the deceased author. While the case was decided under the provisions for post-mortem protection (Article 60), it underscores the principle that an author's intent regarding the publication of even private communications can be a significant factor.

In practice, the right of making public is less frequently the sole basis of litigation compared to other moral rights. If an author who also holds the copyright does not wish for their unpublished work to be disseminated, they can often rely on their exclusive economic rights (like the right of reproduction or public transmission) to prevent it.

2. The Right of Attribution (氏名表示権 - Shimei Hyōjiken) (Article 19)

This right gives the author the authority to decide whether their name should be indicated as the author when their work is offered or presented to the public, and if so, whether to use their real name, a pseudonym (pen name, stage name, etc.), or to remain anonymous. This right also applies to indicating the name of the original author when a secondary work (e.g., a translation or adaptation) is exploited.

Users of a work are generally expected to follow any existing attribution the author has chosen, unless the author indicates a different preference (Article 19(2)).

However, Article 19, Paragraph 3, allows for the omission of the author's name under certain conditions:

• If, in light of the purpose and circumstances of the exploitation of the work, it is found that omitting the author's name is not likely to harm the author's interest in claiming authorship; and
• Provided that such omission is compatible with fair practice.
  There is some legal discussion as to whether these two conditions are conjunctive (both must be met) or disjunctive (either one is sufficient). A common view is that both conditions should be satisfied for an omission to be permissible.

The IP High Court decision in the John Manjirō Sculpture Case (February 27, 2006) addressed issues of false attribution on a work of sculpture and the remedies available to the true author, highlighting the importance of this right.

3. The Right of Integrity (同一性保持権 - Dōitsusei Hojiken) (Article 20)

This is often considered one of the most powerful and frequently invoked moral rights. It grants the author the right to preserve the integrity of their work and its title against any distortion, mutilation, or other modification made "against their will" (i ni hansuru henkō 意に反する変更).

• "Against their will": While this phrasing suggests a subjective element based on the author's wishes, courts often assess this in light of societal norms, the nature of the work, and the purpose and manner of the modification. An author's mere assertion that a change is "against their will" may not be conclusive if the modification is trivial or customary and does not objectively harm their legitimate interests. The Tokyo High Court in the Haiku Correction Case (August 4, 1998) found implied consent to minor editorial corrections of haiku submitted for publication, based on industry practice and the author's presumed understanding. Conversely, the Tokyo High Court in the Hosei University Prize Essay Case (December 19, 1990) found that even minor editorial changes to punctuation could infringe the right of integrity if done against the author's expressed wishes.
• Scope of "Modification": This can include alterations, deletions, or additions to the work. The Supreme Court in the Tokimeki Memorial Case (February 13, 2001) held that the sale of cheat devices (memory cards) that altered the story progression and character parameters in a video game infringed the game authors' right of integrity.
• Exceptions to the Right of Integrity (Article 20(2)): The law provides several specific situations where modifications are permissible even if they might otherwise be against the author's will:
  1. Modifications necessary for school education (e.g., simplifying language or changing characters in textbooks for pedagogical purposes).
  2. Modification of an architectural work by means of extension, rebuilding, repairing, or remodeling.
  3. Modifications necessary to enable the use of a computer program on a particular computer where it would otherwise be unusable, or to make more effective use of a computer program.
  4. Other modifications that are deemed "unavoidable in light of the nature of the work as well as the purpose and circumstances of its exploitation" (yamu o enai to mitomerareru kaihen やむを得ないと認められる改変). This is a crucial, flexible exception that allows for a balancing of interests. For example, necessary technical alterations for broadcasting or online streaming, or minor edits for formatting, might fall under this category if they do not substantially harm the author's artistic intent or reputation.

The relationship between the right of integrity and the right of adaptation (an economic right) is important. Even if an author has authorized an adaptation (e.g., licensed film rights for their novel), the way the adaptation is carried out could still potentially infringe their right of integrity if it introduces modifications against their will that are not covered by an exception. This often leads to discussions about "non-exercise agreements" for moral rights in adaptation contracts. While a complete prospective waiver of the right of integrity is generally considered invalid due to its inalienable nature, authors can, and often do, consent to specific types of modifications or a particular adapted version.

Acts Deemed to Infringe Author's Moral Rights (Article 113, Paragraph 7)

Beyond direct infringement of the three main moral rights, Article 113, Paragraph 7 (previously Paragraph 6 in older versions of the Act) states that any use of a work in a manner that would be prejudicial to the honor or reputation (meiyo seibō 名誉声望) of the author is deemed to be an infringement of their moral rights.

This provision can apply even if the work itself has not been directly modified (thus not infringing the right of integrity) or if attribution is correctly given. The "honor or reputation" protected here refers to the author's objective societal evaluation, not their subjective feelings of being offended, as clarified by the Supreme Court in the Parody Montage Case (Second Final Appeal) (May 30, 1986). An example might be using a dignified piece of classical music in a highly inappropriate or demeaning advertisement.

Moral Rights and Corporate Authorship

As discussed in a previous article concerning "works made for hire" (Article 15), if a juridical person (e.g., a company) qualifies as the author of a work, it acquires not only the copyright but also the author's moral rights. This raises interesting questions, as moral rights are traditionally linked to the personal feelings and reputation of human creators. How a corporation "feels" its honor prejudiced or has a "will" regarding modifications is conceptually different. Some legal scholars suggest that when a corporation holds moral rights, their exercise might be viewed more through the lens of protecting the work's utility and marketability rather than a personal, spiritual connection.

Post-Mortem Protection of Author's Personal Interests (Article 60)

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

This post-mortem protection can be enforced by the author's surviving family members (spouse, children, parents, grandchildren, grandparents, or siblings, in a specified order of priority under Article 116). These family members can seek injunctions and measures for the recovery of the deceased author's honor or reputation (e.g., apologies or corrections). There is an exception if the act in question is deemed not to contravene the deceased author's presumed will in light of changed societal circumstances or other relevant factors (the proviso to Article 60).

Moral Rights in Joint Works (Article 64)

For works created jointly by two or more authors where their contributions are inseparable (joint works), the moral rights belong to all co-authors collectively. As a general rule, these rights must be exercised by the unanimous agreement of all co-authors. However, a co-author may not unreasonably withhold their consent. To facilitate the exercise of these rights, co-authors may appoint one among them to represent the group.

Enforcement and Remedies

Infringement of an author's moral rights can lead to several remedies:

• Injunctions (Article 112): To stop or prevent the infringing act.
• Measures for Recovery of Honor or Reputation (Article 115): This can include demanding a public apology, correction of the work, or other suitable measures to restore the author's standing.
• Damages for Mental Suffering: While Article 115 focuses on non-pecuniary remedies, authors can also claim damages for mental distress or harm to reputation under general tort law principles (Civil Code Article 709 and 710).

Conclusion

Author's moral rights are a deeply ingrained and significant aspect of the Japanese copyright system, reflecting a strong concern for the personal link between creators and their works. Their inalienable nature and independence from economic rights mean that users, publishers, and adapters of copyrighted works must always consider these personal rights alongside any licenses or permissions obtained for economic exploitation. Navigating these rights, particularly the potent right of integrity and its exceptions, requires careful attention to ensure that the author's personal and reputational interests are duly respected.