Who's the Author? The Importance of Attribution (Shimei-Hyojiken) under Japanese Copyright Law

Japanese Attorney at Law - Bengoshi L.L.

01 Jun 2025 • 8 min read

In the realm of copyright, the connection between a creator and their work is often considered profound. Beyond the economic rights to control how a work is used, Japanese copyright law, like that of many civil law countries, grants authors a distinct set of "moral rights" (著作者人格権 - chosakusha jinkaku-ken). Among these, the "right of attribution" (氏名表示権 - shimei hyōji-ken), as stipulated in Article 19 of the Japanese Copyright Act (著作権法 - Chosakuken-hō), plays a crucial role in recognizing and protecting this author-work relationship. This right empowers authors to decide how their authorship is represented – or not represented – to the public, and understanding its nuances is vital for anyone publishing, distributing, or otherwise utilizing copyrighted works in Japan.

The Core of the Right of Attribution: An Author's Choice

Article 19, Paragraph 1 of the Japanese Copyright Act provides the foundation for the right of attribution. It states: "The author of a work shall have the right to determine whether or not his true name or a pseudonym should be indicated as the name of the author on the original of his work, or when his work is offered or presented to the public. The same shall apply with respect to the indication of the name of the author of an original work when a derivative work thereof is offered or presented to the public."

Essentially, this grants the author the choice to:

Have their real name indicated.
Have a pseudonym (pen name, stage name, etc.) indicated.
Have no name indicated (i.e., publish anonymously).

This choice is personal to the author and is intended to protect their spiritual interests, their honor, and their reputation as associated with their creations. The rationale is not solely tied to societal fame or preventing reputational damage in a broad sense; it's about the author's individual decision regarding the public face of their work, even if it involves a one-time pseudonym or applies to an original work not yet widely disseminated.

Scope of Application: When and Where Does Attribution Matter?

The right of attribution is not invoked every time a work is used. Its application depends on the nature of the work (original vs. copy) and the manner of its use.

"Offering or Presenting the Work to the Public": For copies of a work, the right of attribution applies when these copies are "offered or presented to the public". This encompasses a wide range of activities, including publication, broadcasting, online transmission, public performance, and public exhibition of copies. If copies are used strictly in a private sphere without public dissemination, the right of attribution under Article 19(1) may not be triggered for those copies.
Original Works: For the original of a work, the author has the right to determine the name indication on the original itself, irrespective of whether the original is immediately offered or presented to the public. This acknowledges the unique connection an author has with the singular original piece. The public offering or presentation aspect becomes more directly relevant when the original is publicly exhibited or when copies are made from it for public use.
Derivative Works: The right of attribution of the author of an original work extends to the indication of their name when a derivative work (e.g., a translation, adaptation, or film based on their original work) is offered or presented to the public. This ensures that the creator of the underlying source material is appropriately acknowledged.
Focus on Creative Expression: Like other moral rights, the right of attribution is tied to the "work" – the creative expression. If only unprotectable ideas from a work are used, or if the use does not involve the reproduction or presentation of the work's creative expression, then issues of attribution under copyright law may not arise in the same way.

Exceptions and Permissible Practices: Navigating Attribution Requirements

While the author's choice is paramount, the Japanese Copyright Act provides certain "safe harbors" and exceptions to balance the author's interests with practical considerations for users of copyrighted works.

1. Following the Author's Existing Indication (Article 19(2))

Article 19(2) states: "A person exploiting a work may indicate the name of the author in the manner adopted by the author in indicating his true name or pseudonym, unless the author has manifested a different wish."

This is a crucial provision for users. It means that if an author has already indicated their name (or a pseudonym, or chosen anonymity) on the work or in connection with its previous public offerings, a user can generally follow that existing practice and be compliant with the right of attribution.

What if the Author's Existing Indication is "Anonymous"? If an author has initially published a work anonymously, a user following that practice (i.e., not attributing a name) would generally be covered by Article 19(2). The author chose anonymity, and the user is respecting that choice.
What if the Work is Modified? This is a more complex scenario. If a work is legitimately modified (e.g., under an adaptation license or a statutory exception to the right of integrity), simply carrying over the original author's name as it appeared on the unmodified work might not always be appropriate or automatically covered by Article 19(2). The modification might change the nature of the work to an extent that the original author would not wish their name to be associated with the modified version in the same way. In such cases, the author's "different wish" (or lack thereof, or the terms of any agreement) becomes critical.
Timing of the Author's "Different Wish": If an author wishes for a different form of attribution than what they previously used, they must communicate this. The practicality of implementing such a wish will depend on when it is communicated relative to the user's actions (e.g., if a book is already printed).
Multiple Existing Indications: If an author has used different attributions for the same work at different times, users should ideally follow the most recent known indication, assuming it reflects the author's current preference.

2. Permissible Omission of Attribution (Article 19(3))

Article 19(3) allows for the omission of the author's name in certain circumstances: "The indication of the name of the author may be omitted where, in light of the purpose and manner of exploiting the work, it is found that such omission is unlikely to harm the interests of the author in his claim of authorship and is compatible with fair practice."

This exception acknowledges situations where indicating the author's name might be impractical, customary not to do so, or where the context makes it clear that the author's claim to authorship is not being undermined.

"Unlikely to Harm the Author's Interests in His Claim of Authorship": This means the omission should not create a situation where the author's status as the creator is obscured or denied.
"Compatible with Fair Practice": This refers to prevailing customs and ethical standards in the relevant field or industry.
Common Examples: Playing background music in a shop or restaurant, where continuously announcing the author of each track would be impractical, is a typical example where omission might be justified under this provision. Incidental uses where the focus is not on the work itself might also qualify.

The determination under Article 19(3) is a balancing act, weighing the practicalities of use against the author's fundamental interest in being recognized.

The most straightforward way to navigate the right of attribution is through the author's consent. If an author agrees to a specific way their name will be used (or not used), this generally resolves the issue.

However, the nature of such agreements requires careful consideration:

Explicit Consent: Clearly documenting the author's wishes regarding attribution in contracts is highly advisable.
Agreements Regarding False Attribution: An agreement to attribute authorship to someone who is not the actual author, or to falsely attribute a work created by one person to another, can be problematic. Article 121 of the Copyright Act imposes criminal penalties for distributing copies of a work bearing the name of a non-author as the author. Consequently, agreements that involve such false attribution may be considered contrary to public policy and potentially void.
Joint Authorship: In cases of joint authorship, all authors generally have the right of attribution. Agreements among joint authors or with users should specify how attribution will be handled for the collective work and for their individual contributions if distinguishable. An agreement to display only one joint author's name, with the consent of the others (who are thus choosing a form of anonymity or specific representation for that use), is generally permissible as it doesn't involve false attribution to a non-author.

Distinguishing the Right of Attribution from the Duty to Indicate Source (Article 48)

It's important not to confuse the author's moral right of attribution (Article 19) with the separate statutory obligation to indicate the source of a work (出所の明示義務 - shussho no meiji gimu) under Article 48.

Article 48 generally requires users to indicate the source when reproducing a work under certain copyright limitations (e.g., for private use, quotation, educational purposes). The main purposes of Article 48 are:

To enable verification that the use indeed falls within a permitted limitation.
To allow interested parties to trace the work back to its origin, potentially benefiting the copyright holder.

While fulfilling the duty to indicate the source under Article 48 might sometimes also satisfy the author's right of attribution (e.g., if the source indication includes the author's name as they wish it), the two obligations are distinct.

An infringement of the right of attribution could occur even if the source is indicated (e.g., if the wrong name is used, or a pseudonym is used against the author's wish for their real name).
Conversely, the duty to indicate the source might require more information than just the author's name (e.g., the title of the work, publisher).
Violation of Article 48 has its own set of consequences (including potential fines under Article 122), separate from the remedies for moral rights infringement.

Consequences of Infringing the Right of Attribution

Infringement of the right of attribution can lead to:

Injunctive Relief (Article 112): The author can demand that the infringing use (e.g., distribution of copies with incorrect attribution) be stopped and that measures be taken to prevent future infringement.
Damages (Civil Code Article 709): Compensation for harm, often for mental distress.
Measures to Restore Honor or Reputation (Article 115): This could include demanding a correction or an apology, particularly if the incorrect attribution or omission has negatively impacted the author.

Practical Considerations for Businesses

Given the personal and inalienable nature of the right of attribution, businesses should:

Establish Clear Attribution Policies: Have clear internal guidelines on how author attribution is to be handled for all types of works used or published.
Verify Author's Wishes: Whenever possible, confirm directly with authors or their authorized representatives how they wish to be attributed. Do not assume.
Incorporate Attribution into Contracts: Licensing agreements, commissioning agreements, and publishing contracts should contain specific clauses regarding author attribution, reflecting the author's choices.
Consider the Medium and Context: The "purpose and manner of exploiting the work" (Article 19(3)) is key. What is acceptable for background music might not be acceptable for a prominently featured photograph in a book.
Digital Uses: In the digital environment, ensure that metadata and embedded information correctly reflect author attribution and are not easily stripped or altered. Attribution for online content should be clear and accessible.
International Works: Be mindful that authors of foreign works used in Japan are also entitled to this moral right under the principle of national treatment in the Berne Convention.

Conclusion

The right of attribution, or shimei hyōji-ken, is a cornerstone of authors' moral rights in Japan. It affirms the author's fundamental connection to their creative output and their autonomy in deciding how that connection is presented to the world. For businesses, respecting this right goes beyond mere legal compliance; it involves acknowledging the personal investment of creators and fostering good relationships within the creative ecosystem. By understanding its scope, permissible exceptions, and the importance of clear communication and agreement with authors, businesses can navigate the complexities of Japanese copyright law more effectively and ensure that authors are appropriately and respectfully recognized for their contributions.