Restoration-of-status-quo relief to redress infringement of authors' moral rights*
Naoya Ichimura**
* This thesis is the first-prize winner in the Second Contest for Prize Papers on Copyrights and Neighboring Rights
** Attorney at Law, who was a legal apprentice of the Legal Research and Training Institute when he wrote this thesis.
Contents |
| 1. Introduction |
| 2. Examination of judicial precedents |
| 3. Reconsideration of the interpretation and application of Article 115 |
| 4. Summary |
| References |
1. Introduction
Article 115 of the Copyright Law of Japan (hereafter referred to simply as "Article 115") states, "The author may demand a person who has infringed his moral rights intentionally or negligently to take measures necessary to identify him as the author, to correct distortions, mutilations, or modifications or to recover his honor or reputation either instead of indemnification of damages or together with indemnification of damages."
Under Japanese law, redress for an unlawful act is in general achieved by the method of monetary indemnification (Civil Code Articles 709, 722, 417). However, injury caused by an infringement of a person's character interests, such as honor or credit, "is something that continues to occur on an ongoing basis at least for a certain period of time as long as the source of the injury is not eliminated, so it is inappropriate for remedy by money alone, and requires the actual restoration of one's damaged social standing*1." For illegal acts of a fixed type, the method of restoration-of-status-quo relief is recognized as an exception (Civil Code Article 723, Patent Law Article 106, Unfair Competition Prevention Law Article 7, etc.).
Because a work is an expression of the author's ideas and feelings, that is, a revelation of his personal values, cases will inevitably arise in which even the character interests of the author himself or herself will suffer if any modification, publication, or improper name labeling, etc. is done on their work contrary to his or her intent. In order to adequately protect the author, it is natural that protection should extend beyond simply property interests to the author's character interests in his or her work, and Article 155, which recognizes restoration-of-status-quo relief to remedy the unlawful act of infringement of an author's moral rights, is a very important provision for ensuring the protection of the authors' character interests, along with Article 112 of the Copyright Law which declares the right to demand an injunction.
Nevertheless, as seen later in this paper, the restoration-of-status-quo relief of Article 115 has functioned only in a very limited range. This is thought to be because inadequate consideration has been given to the significance of the fact that the Copyright Law, apart from Civil Code Article 723, prescribes its own restoration-of-status-quo relief for the infringement of authors' moral rights.
However, the increasing availability recently of works in digital form and over networks has made access to public works dramatically easier and greatly increased the danger that acts of infringement of moral rights will take place, and the problem of how to effectively redress authors for infringement of their moral rights has become an important issue in copyright law.
In an awareness of these issues and through an analysis of recent judicial precedents, this paper attempts to clarify the present status of and problems occurring in the interpretation and application of the restoration-of-status-quo relief prescribed by Article 115 for the infringement of moral rights, and offers a proposal for the more active application of Article 115.
2. Examination of judicial precedents
Let us begin by looking at the present state of litigation demands for restoration-of-status-quo relief for moral rights infringement (hereafter called "demands for restoration of the status quo", referring to, unless otherwise stated, demands under Article 115). The accompanying table lists the court decisions available from published sources that have been handed down in the 10 years since 1989 in response to demands for restoration of the status quo. Using this information, let us examine the recent court decisions.
2.1 Overview of court decisionsThe most general measure as a demand for restoration of the status quo is a "public apology", in which, as in the case of infringement of the right of reputation under the Civil Code (hereafter referred to simply as infringement of "the right of reputation"; Civil Code Article 723), the fact of an infringement of moral rights and the text of an apology for it are run in a newspaper, etc. under the name of the defendant. In all the cases in the accompanying table, a public apology was demanded, regardless of the type of moral right claimed to have been infringed. As regards other measures, only one case is seen in which, together with a public apology, a simple correction advertisement was demanded, including running a counterargument (5)*2 and the text of an apology (13, 19, District Court and High Court decisions in the same case).
Looking at the decisions of the court with respect to these demands for restoration of the status quo, of the 26 court decisions (in 22 cases), in only three decisions (two cases) was the demand granted. It is clear that courts are very cautious about granting a demand for restoration of the status quo, and that it is very difficult for an author whose moral rights have been infringed to obtain relief by measures to restore the status quo.
Turning our attention to the reasons why demands for restoration of the status quo are dismissed, we find that in only six cases (3, 5, 16, 22, 23, 26) was the demand for restoration of the status quo dismissed on the grounds that the infringement of moral rights itself was not recognized. In almost all of the other cases, only damages (consolation money) were granted, and the demand for restoration of the status quo was dismissed, regardless of whether it was recognized that an author's moral rights had been infringed by intent or negligence. This indicates that in deciding whether to accept or reject a demand for restoration of the status quo, the courts add separate elements in the judgment to the requirement of Article 115 that a person "infringed [the author's] moral rights intentionally or negligently."
2.2 Judgment elements added by the courts
The judgment elements added by the courts can be inferred from the decisions in which an infringement of moral rights was recognized but a demand for a public apology was dismissed. Looking at the reasons for which a decision was made to dismiss a demand for a public apology, they can be divided into three types: those in which it was held that there was no defamation (type 1), those in which the circumstances subsequent to the infringement were taken into consideration (type 2), and those in which it was held that beyond monetary damages, there was no need to find in favor of a public apology (type 3). We now consider each type in turn.
2.2.1 Defamation
If a public apology is demanded in order "to recover [an author's] honor or reputation" (Article 115), it is a matter of course that a condition for finding in favor of a public apology is that there be injury to one's honor and reputation -- that is, defamation -- to be remedied*3. Court decision reason type 1 for dismissing a demand for a public apology relates to this requirement. What is at issue is the specific meaning of defamation in this context.
On this point, the courts have said that the honor and reputation referred to in Article 115 "refers to the objective value that the author receives from society for his personality values, including character, virtuous conduct, reputation, and trustworthiness, that is, to social reputation and honor" (12, 21, 24, 25), they have made it clear that they fully follow the definition of the Supreme Court decision*4 concerning "reputation and honor" of the old Copyright Law Article 36-2, and even in cases in which they acknowledge an infringement of moral rights, they have dismissed demands for a public apology where they have found that the public's evaluation of the author's personality values has diminished (1, 4, 9, 12, 21, 24, 25).
The definition of honor and reputation adopted by the courts is as cited by the above Supreme Court decision itself and is the same as the definition of the Supreme Court decision*5 concerning "honor" as the term is used in Civil Code Article 723. It is therefore clear that the courts take the "honor or reputation" of Article 115 and the "honor" of Civil Code Article 723 to have the same meaning, and take the defamation for which a restoration of the status quo is demanded to mean a diminishment of the public estimation of the author's personality values.
2.2.2 Circumstances subsequent to the infringement
A court decision of reason type 2 for dismissing a demand for a public apology is one in which defamation caused by an infringement of moral rights is recognized, but a public apology is deemed to be unnecessary when the circumstances after infringement until the court decision are considered, for example remedial measures taken by the parties themselves.
The courts have dismissed the demand for a public apology, finding no need for one, in cases in which, after an act of infringement of an author's moral rights has been committed, the infringement-causing objects are recalled due to the response of the injured party, and the defendant has received social sanction by virtue of the fact that the matter has been taken up in a municipal council as a case of plagiarism (13), in cases in which the defendant on its own has run a correction or apology prior to the court decision (17), and in cases in which the defendant on its own has scrapped its entire inventory of offending goods. This is based on the reason that although the public's evaluation of the author's personality values may have been temporarily diminished because of the act of infringement of his or her moral rights, if by the time of the court's decision it is restored due to a party's autonomous action, there is no longer any need to order a public apology.
Many court decisions in which a demand for a public apology is dismissed for the same reason are also found in demands for restoration of the status quo based on Civil Code Article 723. As in the case of Article 115, the courts dismiss a demand for a public apology if circumstances similar to the above are recognized, such as if the victim himself or herself takes measures to restore honor*6, or if the offending party is subjected to pursuit by an assembly or other social sanction*7 or on its own publishes a correction or apology*8.
Thus, it can be said that the courts take it as a requirement for allowing a demand for a public apology that a condition of diminished public estimation of the author's personality values should continue until the criterion time of the court's decision (the time at which oral arguments conclude), and even then, the matter is treated in the same way as in Civil Code Article 723.
2.2.3 Judgment concerning applicability of the method of relief
In court decision reason type 3 for dismissing a demand for a public apology, monetary damages are deemed to suffice as a method of relief in the case at hand and it is held that there is no need to go so far as to find in favor of a public apology. In fact, this is the most common reason for denial of a demand for restoration of the status quo; in nine of the court decisions listed in the accompanying chart (2, 4, 6, 7, 9, 10, 11, 18, 20), a demand for a public apology was dismissed for this reason.
However, in these court decisions it is not always clearly stated why the court concluded that there was no need to resort to a public apology. In almost all cases, there is no more than a summary explanation, such as, "taking into consideration all of the general circumstances already found" (11). Thus, if among the facts found one looks for circumstances that the court seems to have taken into "comprehensive consideration", it can be inferred that consideration was given from various angles to circumstances concerning the author's attributes, including his or her position, abilities, and relationship with the infringer (2, 4, 11, 20), circumstances concerning the infringed work, including its nature and the purpose for which it was written (2, 6, 9), and circumstances concerning the nature of the act of infringement, including its extent, its quantitative scope, and its motivation (2, 4, 6, 7, 11, 18, 20). It should be said that this is not a judgment regarding the existence of facts constituting the requirements for a public apology, but rather a judgment in which the court takes into consideration all of the circumstances of the case that bear on the propriety of finding in favor a public apology as a remedy for the case.
That is, a type 3 court decision reason is the result of a purpose-appropriate judgment by the court concerning how to repair an infringement of an author's moral rights, showing that it is left to the free discretion of the court, as in the manner of approving the amount of consolation money, whether to order both monetary damages and a demand for restoration of the status quo, or to order only monetary damages (or only restoration of the status quo).
Even in a demand for restoration of the status quo under Civil Code Article 723, the usual explanation is that "the court decides, within the framework of the plaintiff's demand, whether to order" a demand for restoration of the status quo "together with monetary damages, to order only the former, or to order only the latter without recognizing the former*9." Hence, on this point as well, the courts treat Article 115 and Civil Code Article 723 alike.
2.3 Unconstitutionality with respect to public apologies
It must be pointed out that what lies behind the extreme caution that the courts have shown toward approving public apologies is the influential view that a court decision that orders a public apology could be unconstitutional.
As is well known, there is a Supreme Court Grand Bench decision concerning the constitutionality of public apologies*10. This was a case in which an attack against an opposition-party candidate on a political opinion broadcast was alleged to constitute defamation, and a suit was filed demanding that a public apology be run in newspapers under Civil Code Article 723. The original court granted the plaintiff's demand for a public apology, but the defendant appealed, arguing that to compel a public apology would be a violation of the freedom of conscience (Constitution Article 19) that is protected by the Constitution. The majority opinion of the Supreme Court turned down the appeal, finding that a public apology "to the extent of simply acknowledging the truth of the situation and expressing a meaning of apology" does not constitute a violation of freedom of conscience and is a proper disposition under Civil Code Article 723, although this was accompanied by a dissenting opinion by two judges who held that to grant a public apology would be a violation of Article 19 of the Constitution, and a concurring opinion by three judges who agreed with the majority opinion but gave different reasons. This decision focused attention on the issue of court decisions that mandate a public apology, and triggered a major debate about the constitutionality of public apologies, the applicability of "proper disposition" under Civil Code Article 723, and the scope of court decisions.
In practice, it has become the norm to resolve such cases by granting a demand for a public apology in accordance with the majority opinion, but in academic discussions the view that supports the minority opinion and finds this to be unconstitutional is still influential*11. It is not difficult to imagine how this situation has made courts reluctant to widely recognize public apologies as a way to remedy infringements of author's moral rights*12.
3. Reconsideration of the interpretation and application of Article 115
Our study thus far has revealed the following present situation concerning the interpretation and application of demands for restoration of the status quo.
|
(1) | In almost all cases, regardless of the type of moral rights infringed, the specific measure demanded by the author for restoration of the status quo is a so-called public apology. |
| (2) | The courts take the "honor or reputation" referred to in Article 115 and the "honor" of Civil Code Article 723 to have the same meaning, and take as requirements for granting a demand for a public apology not only the general requirement of an unlawful act but also a diminishment of public esteem of the author's personality values and a continued diminishment of public esteem at the criterion time of the court's decision (the time at which oral arguments conclude). | |
| (3) | Even in a case in which the requirements of (2) are met, as the method of remedy in a given case, the court by its free discretion, within the range demanded by the parties, judges whether to allow both monetary damages and measures for restoration of the status quo, or whether to allow only one or the other. | |
| (4) | The unconstitutionality of public apologies is powerfully argued, and this is part of the background situation explaining why courts allow demands for restoration of the status quo in only a very limited way. | |
| (5) | Circumstances (1) through (4) are not unique to Article 115; rather, it is possible to replace all of them with the present circumstances of demands for restoration of the status quo under Civil Code Article 723. |
The low rate at which demands for restoration of the status quo are granted is based on the same circumstances that lead to a low rate of approval of demands for restoration of the status quo under Civil Code Article 723*13, which shows that the above observations are a result of directly applying the framework of Civil Code Article 723 to the interpretation and application of Article 115*14.
However, if a demand for restoration of the status quo under Article 115 were the same as one under Civil Code Article 723, then Article 115 would be unnecessary. The Copyright Law has placed a provision for a demand for restoration of the status quo in Article 115 because authors' character interests are not adequately protected under Civil Code Article 723 and it was thought necessary to separately grant protection appropriate to copyright law. It must be said that present court practice does not pay heed to the fact that the Copyright Law explicitly prescribes Article 115 separately from Civil Code Article 723. In other words, it may be said that the parties and the courts merely repeating the same arguments as for Civil Code Article 723 when arguing about a demand for restoration of the status quo under Article 115 has the effect of lowering the rate at which demands for restoration of the status quo are granted and improperly narrowing the avenues by which an author may obtain relief from an infringement of his or her moral rights. This is regrettable, and ways should be sought to interpret and apply demands for restoration of the status quo that are unique to the infringement of moral rights, making full use of the intent of Article 115.
3.1 Measures to restore the status quo that should be demanded
We will not argue here the question of whether a public apology in itself is an appropriate measure for restoring the status quo, as this is a broad issue that involves both the Constitution and the Civil Code and goes beyond the scope of what is under examination in this paper. However, apart from this point we need to separately examine whether it is appropriate that in almost all cases before the courts a public apology is demanded as a measure to restore the status quo in infringements of moral rights under Article 115. As stated above, with regard to the reason for allowing the exceptional method of relief that is the demand for restoration of the status quo, the injury caused by an infringement of a person's personality interests continues to occur as long as the source of the injury remains, so it is considered necessary to remove the injury at its very source. However, it can be said that the Copyright Law has provisions concerning four types of infringement of an author's moral rights and presumes for each a different source of injury of the author's personality interests, and Article 115, unlike Civil Code Article 723, prescribes two types of measures for restoration of the status quo -- measures that "identify him as the author" (hereafter referred to as "author identification measures"), and measures "to correct distortions, mutilations, or modifications or to recover his honor or reputation" (hereafter referred to as "honor and reputation recovery measures")*15 -- and anticipates restoration of the status quo by different measures in each case.
3.1.1 Measures that identify the author as the author
Author identifications measures are measures to restore the status quo in order to repair an infringement of the right of determining the indication of the author's name (Article 19)]*16.
A name distinguishes oneself from others and indicates one's own individuality*17, and an author is able to indicate his or her own individuality concerning how he or she is related to the work by labeling his or her work with his or her real name or a pseudonym, or by not labeling it with a name. Thus, the right of determining the indication of the author's name may be characterized as the right to protect the author's character interests concerning his or her relationship with the work that is created by affixing to the work his or her real name, a pseudonym, or no name at all*18.
Then the source of injury caused by an infringement of the right of determining the indication of the author's name is having the general public recognize, by a false name indication, a relationship with the work that is different from what was intended by the author, and in order to eliminate this it is necessary to have measures that cause the general public to recognize the name indication as intended by the author, so such measures must be allowed as author identification measures. However, a demand for restoration of the status quo is not for the purpose of imposing sanctions on the offending party*19, and recovery from the mental injury caused by a false name indication is the role of the right to demand consolation money, so perhaps it should be said that demanding, beyond this, a public apology to apologize for the act of infringement goes beyond the duty of author identification measures. Court decision (19) in the accompanying table is one important judicial precedent in which a demand for restoration of the status quo is countenanced, but it cannot be concluded that it permits a public apology as an author identification measure.
A so-called advertisement of the conclusions of a court decision, in which a court judgment such as "the author's name that must appear on the work is ___" is displayed at the defendant's expense by a method designated by the court, can be termed an appropriate means as a specific author identification measure. This is because a correct display of the name can be made clear most objectively, avoiding any unnecessary tension with constitutional arguments. The court-prescribed methods of making such a public announcement should include not only publishing an announcement in newspapers, etc., but also suitable measures in consideration of the means, method, media, and extent of the infringement, such as publication on Internet websites and the mailing to relevant people of correction notices and labels to be affixed to the work*20.
3.1.2 Measures to recover honor or reputation
Honor and reputation recovery measures are mainly measures prescribed to remedy infringement of the right of preserving the integrity of a work (Article 20) and deemed infringement of use by a method that harms honor or reputation (hereafter referred to as "act of defamation"*21; Article 113 paragraph 3)*22, and public apologies are generally considered to be included in honor and reputation recovery measures. In almost all of the cases listed in the accompanying table, a public apology apologizing for an act of unauthorized alteration, etc. of a work is demanded as an honor and reputation recovery measure*23.
The right of preserving the integrity of a work is a system for remedying the mental distress of an author having a expression that is not in line with his or her intent because the work has been altered*24*25. In this view, the source of the harm caused by infringement of the right of preserving the integrity of a work is the general public's misapprehension that the altered expression is "in line with the author's intent", and in order to eliminate this misunderstanding it is necessary to have measures to inform the general public that said expression is "contrary to the author's intent". However, what is at issue is whether the altered expression is ultimately in line with the author's intent, not whether the act of alteration was "unauthorized", so a public apology that requires an apology for the "unauthorized" act of alteration should be called improper as a measure to restore the status quo that is unique to infringements of the right of preserving the integrity of a work.
Thus, for a specific measure that a party should demand as an honor and reputation recovery measure, advertising of the results of a court decision holding that "the expression of the altered, etc. work is contrary to the author's intent" may be termed appropriate for the same reason as given for author identification measures.
Meanwhile, what should we think concerning the act of defamation?
Because of the fact that the honor and reputation of an author as an individual may be harmed by the mode of exploitation of his or her work, even if, by virtue of the fact that the work is used in unaltered form, it is not an act that constitutes an infringement of moral rights, Article 113 paragraph 3 is held to be "a provision instituted to protect authors' character interests by the legal fiction that an author's right of honor is a type of moral right*26."
In this view, an act of defamation must be given at least the same relief afforded by the Civil Code against infringements of the right of honor, and although there are contrary views, since in practice a public apology is permitted for a demand under Civil Code Article 723 to counter an infringement of the right of honor, likewise a public apology must be permitted for a demand under Article 115 to counter an act of defamation. The courts have also permitted a public apology in cases in which an act of defamation is recognized (8, 15).
Are honor and reputation recovery measures allowed for infringements of the right of determining the indication of the author's name and the right of making the work public (Article 18)?
On this point, when the right of determining the indication of the author's name is infringed, the general public is unable to associate the work with the author, so no change occurs in the public's evaluation of the author, and it is thought that in many cases the requirement for honor and reputation recovery measures that there be defamation to be remedied is not satisfied*27*28. Moreover, the source of harm of the mental distress caused by the very fact of false name indication should, as stated above, be considered to be something for which the status quo is to be restored by author identification measures.
The right of making a work public is a right that can be called the opposite side of the coin -- as it applies to authors -- to the right of privacy, which is recognized in the Civil Code as the right to control one's own information. Therefore, like the right of privacy, which by its very nature does not allow restoration of the status quo once it has been infringed*29, it should be said that in principle there are no means for a proper restoration of the status quo.
Also, if the work is exploited by a method in which the right of determining the indication of the author's name, the right of making the work public, or the right of preserving the integrity of the work is infringed and the author's honor or reputation are harmed, it is natural to allow relief as an act of defamation*30.
3.1.3 Need to examine unique measures to restore the status quo
The content of the above examination may seem at first glance to weaken the means of relief for moral rights infringements and to be disadvantageous to authors, but that is not the case. In civil suits, the principle of following the right of disposition is adopted, and a court may not allow measures to restore the status quo unless a party asks for it (Civil Code Article 246), and even if there is a case in which it can be allowed if it is a measure other than a public apology, if a party demands only a public apology, the court is forced to reach a decision of dismissing the demand*31. By considering means for restoring the status quo that are unique to moral rights infringements, it becomes possible to allow a court to find in favor of a demand for restoration of the status quo even in such a case.
In my personal view as well, there is nothing to prohibit an author from demanding a public apology based on Civil Code Article 723*32. Moreover, under present circumstances in which Article 115 and Civil Code Article 723 are treated virtually identically, almost all cases in which a demand for restoration of the status quo is actually allowed are, in fact, thought of as being cases in which relief can be granted under Civil Code Article 723. Therefore, for authors to demand under Article 115 measures other than a public apology as a demand for restoration of the status quo unique to a moral rights infringement would actually expand the opportunities to obtain restoration-of-status-quo relief and be to the advantage of authors, with no disadvantages*33.
3.2 Defamation
Next, we consider whether defamation, in the sense of diminishing the public's evaluation of the personality values of an author, is always necessary as a requirement for a demand for restoration of the status quo.
On this point, as stated above, author identification measures are measures for restoring the public's evaluation concerning the relationship with the work as the author intends it by indicating the author's name to the general public as intended, and because their purpose is not to restore honor and reputation, it must be said that defamation itself is not a requirement.
In contrast to this, in order to allow honor and reputation recovery measures, defamation to be redressed is logically necessary as a premise, and because the purpose of a demand for restoration of the status quo lies in restoring the public estimation that is the source of the harm, it can be considered natural that honor and reputation, as the term is used here, means social honor and reputation.
However, should the meaning of this "social defamation" always be construed as a "diminishment" of social evaluation of the author's personality values? It seem necessary to consider this point for each type of moral right.
3.2.1 The case of infringement of the right of preserving integrity
Since in many cases the public's evaluation of an author's personality values depends on its evaluation of the author's work, in the case of infringement of the right of preserving the integrity off the work, if a "diminishment" of social evaluation is taken as a requirement, then if an altered work is well received by the general public, a demand for restoration of the status quo will not be allowed, even if its expression is not in line with the author's intent. As long as creativity is present, however, there will be no inconsistency with the spirit of copyright law, which seeks protection as a work regardless of social evaluation. Thus, on this point I think it should be noted that Article 115 prescribes measures "to recover [the author's] honor or reputation" and does not prescribe any measures to recover "honor" (Civil Code Article 723).
"Honor or reputation" is the wording used in Article 6 paragraph 2(1) of the Berne Convention. As is clear from the definition of "defamatory communication" in Anglo-American law as something to "harm the reputation"*34, the social defamation that the aforesaid Supreme Court precedent takes as a requirement of Civil Code Article 723 refers to a lowering of "reputation." In contrast to this, "honor" is taken to include such meanings as "esteem, respect for the achievements*35" of a person, which is not directly related to whether one's social evaluation is high or low. Therefore, one can think of the "honor or reputation" in Article 115 as social honor and reputation, including such a meaning, which is the object of restoration of the status quo*36.
If a work is altered so as to have an expression that is not in line with what the author intends, the author will be misunderstood by the general public with regard to his or her personality values expressed in the work, harming the author's social honor and reputation in the sense of respect for the expression that is the achievement of his or her creative activity. It is social defamation in this sense that is required for a demand for restoration of the status quo in an infringement of the right of preserving the integrity of a work, and it appears that the original state to be recovered should be construed to be the author's perceived position as the author of the unmodified expression that he or she has created, regardless of how high or low his or her public esteem may be.
3.2.2 The case of an act of defamation
Meanwhile, as stated above, what is to be protected in an act of defamation is, like the right of honor, "reputation", by the legal fiction that the right of honor is a type of moral right, and as with the case of Civil Code Article 723, it is construed that defamation in the sense of diminishment of the public's evaluation of the author's personality values is required for a demand for restoration of the status quo. Even in this case, however, the matter must not be handled in a way that loses the import of the fact that the Copyright Law prescribes Article 115 separately from Civil Code Article 723.
Whereas Article 113 paragraph 3 deems an act of exploitation of a work by a "method" that harms the honor or reputation of the author to constitute an infringement of the author's moral rights, Article 115 prescribes as a condition for honor and reputation recovery measures that one "has infringed [the author's] moral rights" and does not go so far as to require "defamation by an infringement of the author's moral rights." That is, in the event of exploitation of a work by a "method" that harms the author's honor or reputation, this alone satisfies the requirements of Article 115. Since it is usually the case that a work is strongly linked to the author's personality values and that the author's social esteem is lowered when his or her work is exploited by a defamatory "method", when the law shifts the burden of proof concerning the existence of social defamation and exploitation of a work by a "method" seen to harm the author's honor or reputation in the socially accepted sense, then as long as there is no proof that the author's social esteem has not suffered, I believe this must be interpreted as a provision that permits a demand for the honor and reputation recovery measures of Article 115.
3.3 Legal nature of the right to demand restoration of the status quo
Finally, we must consider the point that the court judges at its free discretion, in an analogous manner to approving the amount of consolation money or other damages, whether to permit both monetary damages and measures to restore the status quo, or to permit only one or the other, as the method for remedying an infringement of moral rights.
In many cases, the import of a court decision for an author whose moral rights have been infringed completely differs depending on whether a demand for restoration of the status quo is permitted. Whereas monetary damages are for compensating the author for mental distress suffered because of an infringement of his or her moral rights, a demand for restoration of the status quo, as stated above, is for the purpose of removing the "source of the injury" of mental distress, so the two have different functions and the functions of the latter cannot be replaced by the former. It is therefore inappropriate to think that a judgment concerning a demand for restoration of the status quo is completely at the free discretion of the court.
Civil Code Article 723, which states, "may order an appropriate disposition", leaves it to the free discretion of the court whether to order a disposition of restoration of the status quo, and unlike making a provision that implies that the offending party does not have an obligation to restore honor until the court so orders*37, Article 115 prescribes that the author "may demand" against the infringer measures to restore the status quo, and clearly prescribes that it is the author's "right of demand" in substantive law. If a demand for restoration of the status quo is a right of demand in substantive law, then the author acquires a right to demand restoration of the status quo when its conditions have been met, and thereafter the court should allow such a demand provided that no reason arises to impede or extinguish the right.
To be sure, with respect to what kind of measures are "necessary" (Article 115) as specific measures for restoration of the status quo, because it must be said that the court will make a purpose-appropriate judgment, it is unavoidable that the discretion of the court will come into play here. However, since it is thought that a right to demand restoration of the status quo is permitted to the author, when the court dismisses the author's demand it must clearly state the reason in its decision, and a vague explanation such as "taking the various circumstances into consideration" should not be permitted. It must be said that if the process of judgment by which the demand is dismissed is unclear in the reasons for the court's decision, it should be held that the court has not "given the reasons for its decision", which constitutes absolute grounds for an appeal (Code of Civil Procedure Article 312 paragraph 2 item 6).
4. Summary
The results of the foregoing discussion on the interpretation and application of Article 115 are summarized in the following table.
There are many issues that should be pursued further concerning whether and how to update the right to demand restoration of the status quo to works that are put into digital form or are made available over networks, but discussion of these points is left for another occasion.
The author will be most gratified if this paper serves as an occasion to take another look at how Article 115 is interpreted and applied, and helps to make the protection of authors' moral rights more effective.
| Type of measure to restore the status quo | Type of author's moral rights | Whether defamation is a requirement | Meaning of honor and reputation | Appropriate restoration measure |
| Author identification measures | Right of determining the indication of the author's name | No | ******* | Public announcement of the results of the court decision |
| Honor and reputation recovery measures | Right of preserving integrity | Yes | Regard for the expression that is the achievement of the author's creative activity | Public announcement of the results of the court's decision |
| Act of defamation | Yes | The public's evaluation of the author's personality values (but the burden of proof is shifted) | Same measures as permitted under Civil Code Article 723 | |
| Remarks | If it constitutes a right of making the work public, right of determining the indication of the author's name, or integrity infringement and is deemed to be an exploitation of a method that harms honor or reputation in the socially accepted sense, a demand for restoration of the status quo is permitted as an act defamation. | |||
(Accompanying table)
| 1 | Date of court decision | Work | Act | Claimed moral right | Demands | Content of court decision |
| 1 | Tokyo District Court, April 27, 1990, Harei-jiho 1364-95 | Relief | Making a relief as a graduation work | Right of preserving integrity | Damages (consolation money), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 2 | Tokyo District Court, November 16, 1990, Mutai Saishu** 21-3-702 | Paper submitted for a prize paper | Published in a magazine with changes in spelling and punctuation, etc. | Right of preserving integrity | Damages (consolation money), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 3 | Kyoto District Court, November 28, 1990, Mutai Saishu 22-3-797 | Scientific research (paper) | Some members of a group of joint researchers published a scientific research paper in which the main conclusions were the same as in the joint research. | Right of determining the indication of the author's name, right of preserving integrity (but not clearly stated in the court decision) | Damages (consolation money), public apology | Dismissal (denial of infringement of moral rights) |
| 4 | Tokyo High Court, December 19, 1991, Harei-jiho 1436-199 | Paper submitted for a prize paper | Published in a magazine with changes in spelling and punctuation, etc. | Right of preserving integrity | Appeal of two cases (damages (consolation money), public apology) | Infringement of moral rights was recognized, the amount of consolation money was reduced, and the public apology was dismissed. |
| 5 | Tokyo District Court, February 25, 1992, Harei-jiho 1446-81 | Magazine commentary | Creation of fanciful matters purported to be views of the plaintiff concerning statements in a so-called announcement | Right of preserving integrity, right of preserving honor and reputation | Damages (consolation money), publication of a counterargument text, public apology | Dismissal (denial of infringement of moral rights) |
| 6 | Tokyo District Court, October 30, 1992, Harei-jiho 1460-132 | Taxi tariff | Publication of books of a content similar to a tariff prepared by the plaintiff | Right of determining the indication of the author's name, right of preserving integrity | Injunction against selling the books, scrapping, damages (consolation money), public apology | Infringement of moral rights was recognized, injunction, scrapping, and consolation money were granted, and the public apology was dismissed. |
| 7 | Tokyo District Court, November 25, 1992, Hanji 1467-116 | Sketch | Making and selling a souvenir shop-entrance curtain of a design similar to a sketch | Personality interests following death (right of determining the indication of the author's name, right of preserving integrity) | Damages (consolation money), injunction, scrapping, public apology | It was found to be an act that constitutes an infringement of moral rights if the author exists, consolation money was granted, and the injunction and public apology were dismissed. |
| 8 | Tokyo District Court, August 30, 1993, Chiteki Saishu*** 25-2-310 | Reportage | Producing and broadcasting a television drama based on reportage authored by another | Right of determining the indication of the author's name, right of preserving integrity, act of defamation | Damages (consolation money), public apology | Infringement of right of preserving integrity and act of defamation were recognized (infringement of right of determining the indication of the author's name was denied), and consolation money and a public apology (honor and reputation recovery measures) were granted. |
| 9 | Tokyo District Court, January 31, 1994, Chiteki Saishu 26-1-1 | Game software | Putting a very similar game program on a disk and selling it together with a book | Right of determining the indication of the author's name, right of preserving integrity | Public apology | Infringement of moral rights was recognized, and the public apology was dismissed (damages for infringement of author property rights were not granted). |
| 10 | Tokyo District Court, July 25, 1994, Chiteki Saishu 26-2-756 | Diagrams and tables of provisions of laws and orders | Publishing a book that includes similar diagrams and tables | Right of determining the indication of the author's name, right of preserving integrity | Damages (injury of credit), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 11 | Aomori District Court, February 21, 1995, Chiteki Saishu 27-1-210 | Photograph of a stone wall | Including in a book, and publishing, a photograph taken by an amateur historian on the Kii Peninsula, represented as the ruins of Yamatai Castle | Right of making the work public, right of determining the indication of the author's name | Damages (consolation money), public apology, publication of a correction, deletion of the infringing parts | Infringement of moral rights was recognized, consolation money was granted, and the public apology, publication of a correction, and deletion were dismissed. |
| 12 | Tokyo District Court, May 31, 1995, Harei-jiho 1533-110 | Book | Publication of a book in which many of the expressions, etc. are the same | Right of determining the indication of the author's name, right of preserving integrity | Damages (consolation money), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 13 | Tokyo District Court, February 23, 1996, Harei-times 933-216 | City history manuscript | Altering another's manuscript without permission and submitting it as a paper under one's own name | Right of making the work public, right of determining the indication of the author's name, right of preserving integrity | Damages (consolation money), public apology, incineration of the manuscript | Infringement of moral rights was recognized, consolation money was granted, and the public apology and injunction were dismissed. |
| 14 | Tokyo District Court, February 23, 1996, Chiteki Saishu 28-1-54 | Cartoon | Altering the design and wording, etc. of the original drawings, running them in a magazine, and publishing | Right of making the work public, right of preserving integrity | Damages (consolation money), public apology | Formal infringement of moral rights was recognized, but the demands were dismissed. |
| 15 | Tokyo High Court, April 16, 1996, Chiteki Saishu 28-2-27 | Reportage | Producing and broadcasting a television drama based on reportage authored by another | Right of determining the indication of the author's name, right of preserving integrity, act of defamation | Appeal of 8 cases (public apology) | Appeal dismissed (original court decision upheld). |
| 16 | Takamatsu High Court, April 26, 1996, Harei-times 926-207 | Private message (letter) | The recipient of a private message, without the consent of the sender, published it as is as a photographic plate in a book. | Right of making the work public, right of preserving integrity | Damages (consolation money), demand for injunction, public apology | Dismissed (nature of private message as a work was denied, only consolation money based on an infringement of privacy was granted). |
| 17 | Tokyo District Court, July 30, 1996, Harei-jiho 1596-85 | Master's degree thesis | Publication in a magazine with the sequence of the authors of the paper transposed | Right of determining the indication of the author's name | Damages (consolation money), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 18 | Tokyo District Court, September 30, 1996, Chiteki Saishu 28-3-464 | Novel, nonfiction | Producing and broadcasting a program based on it | Right of determining the indication of the author's name | Damages (consolation money), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 19 | Tokyo High Court, October 2, 1996, Harei-jiho 1590-134 | City history manuscript | Altering another's manuscript without permission and submitting it as a paper under one's own name | Right of making the work public, right of determining the indication of the author's name, right of preserving integrity | Appeal of 13 cases (damages (consolation money), public apology, incineration of the manuscript) | The amount of damages was increased, and a public apology was granted as "author identification measures". |
| 20 | Sendai High Court, January 30, 1997, Chiteki Saishu 29-1-89 | Photograph of a stone wall | Including in a book, and publishing, a photograph taken by an amateur historian on the Kii Peninsula, represented as the ruins of Yamatai Castle | Right of making the work public, right of determining the indication of the author's name, right of preserving integrity | Appeal of 11 cases (damages (consolation money), public apology, publication of a correction, deletion of the infringing parts) | The amount of the damages was increased, and the public apology, etc. was dismissed. |
| 21 | Kyoto District Court, July 17, 1997, Copyright 477-20 | Prototype of cartoon character | Altering the prototype, commercializing it, and advertising and selling it | Right of preserving integrity | Damages (consolation money), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 22 | Tokyo District Court, August 29, 1997, Harei-jiho 1616-148 | Haiku | After making additions and deletions to a submitted haiku, publishing it in a magazine | Right of preserving integrity | Recognition of copyright, damages (consolation money), and notice, broadcast, publication, etc. of an apology | Recognition of copyright was rejected, the remaining claims were dismissed (infringement of moral rights was denied). |
| 23 | Osaka District Court, November 27,1997, Harei-times 965-253 | Game software (motion picture work) | Importing and selling memory cards containing data to be read in and used by the hardware of a game machine | Right of preserving integrity | Damages, (consolation money), public apology | Dismissal (infringement of moral rights was denied, damages due to infringement of the right of reproduction were granted). |
| 24 | Tokyo District Court, July 17, 1998, Copyright 454-13 | Book | Issuing a book part of whose content is the same or similar | Right of determining the indication of the author's name | Damages, (consolation money), public apology | Infringement of moral rights was recognized, consolation money was granted, and the public apology was dismissed. |
| 25 | Tokyo District Court, October 29, 1998, Harei-jiho 1658-166 | Interview article | Picking up an article in the plaintiff's magazine, rearranging and summarizing it, and including it in a book | Right of determining the indication of the author's name, right of preserving integrity | Damages (consolation money), injunction, scrapping, public apology | Infringement of moral rights was recognized, injunction was granted, and the consolation money and public apology were dismissed (damages for infringement of author property rights were not granted). |
| 26 | Tokyo District Court, October 30, 1998, Copyright 454-6 | Book | Summarizing and quoting the plaintiff's book | Right of determining the indication of the author's name, right of preserving integrity | Damages (consolation money), public apology | Dismissal (infringement of moral rights was denied). |
*Only matters based on infringement of moral rights are listed in the contents of the demands and the court decision, etc.
**Mutai Saisyu: Mutaizaisankenkankei-Minjisaibanreisyu.
***Chiteki Saisyu: Chitekizaisankenkankei- Minjisaibanreisyu.
References
[ Copyright Update Japan top ]
Copyright Update Japan 2000
Published by COPYRIGHT RESEARCH AND INFORMATION CENTER (CRIC).