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The Right of Integrity Concerning Haiku
Miyo Tonami


I

The right of preserving the integrity of a work of copyright is laid down in Art.20 of Japanese copyright law (Law No.48, promulgated on May 6, 1970) (hereinafter referred to as jap.copyright[1]). This provision has the following wording:

Art.20. (1) The author shall have the right to preserve the integrity of his work and its title against any distortion, mutilation or other modification against his will.
(2) The provision of the preceding paragraph shall not apply to the following modifications:
(i) change of ideographs or words or other modifications deemed unavoidable for the purpose of school education in the case of the exploitation of works under the provisions of Article 33, paragraph(1)(including the case where its application mutatis mutandis is provided for under the provision of paragraph (4) of the same article) and Article 34, paragraph (1);
(ii) modification of an architectural work by means of extension, rebuilding, repairing, or remodeling;
(iii) modification which is necessary for enabling to use on a particular computer a program work which is otherwise unusable on that computer,or to make more effective the use of a program work on a computer;
(iv) other modifications not falling within those mentioned in the preceding three items, which are deemed unavoidable in the light of the nature of a work as well as the purpose and the manner of exploitation.

According to this provision the author can forbid any distortion, mutilation or other modification against his will. In order to clarify the intention of the terms "against his will" or "other modifications, which are deemed unavoidable in the light of the nature of a work as well as the purpose and the manner of exploitation"( Art.20(2)(iv)jap.copyright), I would like to introduce an interesting judgment, recently handed down by the Tokyo District Court[2].


II

The judgment of the Tokyo District Court, regarding a so-called Haiku, gives a good opportunity to consider about the right of integrity in Japan. Haiku belongs to the Japanese tradition of short poetry and is appreciated by many people not only in Japan but also in the international community because of its short and simple construction. In accordance with the rules of Haiku, a poem must be constructed from 5-7-5 syllables(altogether 17 syllables) and must include one word which expresses a season (Kigo). But the 5-7-5 syllable rule is not always applied. A dissonant method(Hacho), which ignores the 5-7-5 syllable rule intentionally, is also allowed. One of the defendants of this case is the NHK publisher(defendant 1))[3], which publishes the bimonthly magazine "NHK Shuppan Haiku". The plaintiff had contributed her Haiku to the October/November 1993(Haiku A), December 1993/January 1994(Haiku B) and February/ March 1994(Haiku C) editions of this magazine. On doing so, she recognized the defendant 2) as a "selector" of her Haiku. This selector is a famous Japanese Haiku poet who emphasises simple and intelligible Haiku[4]. He corrected Haiku A,B,C and chose the corrected Haiku as Haiku for publication. The corrected Haiku were published as the plaintiff's Haiku; The magazines were sold nationwide. The Haiku composed by the plaintiff(A,B,C) and the Haiku corrected by the defendant("A","B","C") are presented below in order both in romanized form, and original Japanese script as well as in transliteration.

a)the Haiku composed by the plaintiff(A,B,C)

A: na mi no tsu me su na o tsu ma n de sa ku ra ga i
the nail of wave pick up sand cherry shell*
*a kind of carpenter's tellin
B: idomizu kara meron no amimega taguraruru
from a well's water net of melon is drawn
C: mi no u e ni mi no mu shi gi n shi no a me mo a me
on your body knit! bagworm also silver thread rain

b)the Haiku corrected by the defendant-2)("A","B","C")

"A": su na ha ma ni na mi ga tsu me tate sa ku ra ga i
on a sandy beach wave scratch with nail cherry shell
"B": idomizu kara meron no tsunaga taguraruru
from a well's water rope of melon is drawn
"C": mi no mushi no mi no wa gi n shi no a me mo a mu
straw raincoat of bagworm knits also silver thread rain

III

The defendants asserted following in response to the claim of the plaintiff with respect to the injury of moral right .
(1)According to the old custom of the Haiku poet community, it is usual that a pupil learns Haiku through Haiku correction by a teacher. It is also usual that the Haiku corrected by the teacher is published as the pupil's Haiku in a Haiku magazine. "NHK Shuppan Haiku" is such a magazine. Therefore it can be concluded that the plaintiff who recognized the defendant 2) as a "selector" and had not refused Haiku correction expressly, consented expressly or impliedly that her Haiku were published in the corrected form.
(2)Under the above mentioned custom of the Haiku community and the situation of the publication of a contributed Haiku in a Haiku magazine, Haiku correction is a matter of "other modifications, which are deemed unavoidable in the light of the nature of a work as well as the purpose and the manner of exploitation"
The judgment of the Tokyo District Court dismissed the action of the plaintiff for an infringement of a moral right for the following reasons.: The Haiku which the plaintiff had contributed to this magazine were corrected by the defendant 2), in accordance with the Haiku custom of training in composing Haiku.
The column of this magazine collects Haiku on the premise that the contributed Haiku are corrected by a selector as required and then published. Consequently it is presumed that the plaintiff as a Haiku pupil had known of the above-mentioned custom of Haiku correction and the situation of the publication of the contributed Haiku in the magazine. Therefore the plaintiff had consented to Haiku correction by the defendant 2) and Haiku publication by the defendant 1) at least impliedly. In particular, she had recognized the defendant 2) as a "selector" by the Haiku contribution and did not refuse Haiku correction expressly.
Therefore the act of the defendant 2) is not an infringment of the right of preserving integrity. Also the act of the defendant 1), namely, the publication of these Haiku as the plaintiff's Haiku and the sale of this magazine are not regarded as an infringment of moral right of the plaintiff.
The Tokyo District court thus found an implied consent of the plaintiff. However the Court did not decide whether this correction comes under Art.20-(2)-(iv) jap.copyright.


IV

The latter problem in particular will be discussed in the following study.
Firstly the custom of composing Haiku and the situation of Haiku correction by a Haiku selector in a magazine will be critically considered. Secondly it will be discussed how extensively the Haiku were modified. Thirdly it will also be examined whether the modification of these Haiku comes under Art.20- (2)-(iv) jap.copyright. Fourthly it should be reviewed whether the plaintiff had consented to such a considerable correction of the submitted Haiku.

1. The custom of composing Haiku and the situation of Haiku correction by a Haiku selector in the magazine

According to the statement of the Tokyo District Court, it is usual from the time of Matsuo Basho[5] that, in composing Haiku, a teacher corrects his pupil's Haiku and the Haiku corrected by the teacher are published as the pupil's Haiku in a magazine. However in reality, there is a difference between a magazine like "NHK Shuppan Haiku" which is published as mass media with more than 100,000 copies[6] and other magazines(Shusaishi) which are published only by a small Haiku club with very few copies[7]. A purchaser of the latter magazine is usually only the members of the relevant Haiku clubs.
The relation between the selector and the composer, namely a teacher and a pupil of such a magazine could be comparable with the intimate relation between the teacher and the pupil in the time of Basho. In this context, a situation of Haiku selection is conceivable, namely, that the Haiku corrected by a teacher is published as the pupil's Haiku in a magazine which only the members of the relevant Haiku club buy. However it is not comparable with the relation of the selector and the composer in the magazine like "NHK Shuppan Haiku" which everyone can buy in any bookshop.

Also the purpose of the Haiku selector is different in both magazines. According to the statement of defendant 2), he corrects the Haiku selection for a pure Haiku magazine(Shusaishi) in which the lesson of Haiku composing is for him very important, only through the modification of one or two syllables or through the change of the syllable order. He tries to respect the individuality of the pupil. On the other hand, in a Haiku selection in the mass media, the Haiku itself is more important for him than the individuality of his pupil. Thus he selects many Haiku for publication. It is obvious that the defendant 2) corrects many of his pupil's Haiku by the Haiku selection for mass media in order to publish many Haiku. It is also mentioned that the original Haiku of the pupil and the Haiku corrected by the teacher are sometimes published in a Haiku magazine simultaneously. It is found also besides, what the court itself refered to in the finding of fact, that some selectors reject Haiku correction for the reason that a corrected Haiku is no longer exactly the same Haiku of the pupil. It seems to me very questionable whether the Tokyo District Court took these paticular situations in the Haiku composing into consideration in the judgment.

2. How extensively were the plaintiff's Haiku modified?

As mentioned above, the defendant 2) is a famous Japanese Haiku poet who emphasises simple and intelligible Haiku. However in this case, he modified the meaning of the plaintiff's Haiku. These points will be discussed below.

a) Haiku A, Haiku "A"
Perhaps in order to make the plaintiff's Haiku more intelligible, the defendant 2) modified the simile "the nail of wave pick up sand" into the simile "wave scratch with nail". But the impression on the readers from both versions is very different. The feeling which the plaintiff would express in this Haiku is distorted through the correction by the defendant 2).; The creative expression of the plaintiff became a routine expression. The corrected Haiku give a severe and unpoetic effect, as against the plaintiff's expressive form.
b)Haiku B, Haiku "B"
Perhaps in order to keep the 5-7-5 syllable rule and to make the plaintiff's Haiku more intelligible, the defendant 2) has selected "rope"(tsu na) for the expression "net"(a mi me). However in this Haiku, the plaintiff had attempted to draw a parallel between "net" with which a melon in a well is pulled above and the pattern of its peel. But the object itself of this Haiku is not "rope" but "net". The defendant 2) modified only two syllables(a mi me, tsu na) in this Haiku, but he has changed the object of this Haiku through his correction and destroyed the original creative idea of the plaintiff.
c)Haiku C, Haiku "C"
A bagworm is the small caterpillar which hangs from a branch with a thin thread and puts small leafs on its body with its thread. The plaintiff would use a kind of Japanese paranomasia[8] in this Haiku("on your body""straw raincoat" are both pronounced in Japanese as "mino" and "rain""knit" are both pronounced in Japanese as "a me"). At the same time she would express an affectionate feeling to the bagworm with the imperative (knit!).
Perhaps in order to keep the 5-7-5 syllable rule and to make the plaintiff's Haiku more intelligible, the defendant 2) corrected this Haiku. However he distorted essentially a feeling which the plaintiff would express with the play on words and the imperative.
Haiku are constructed only from 17 syllables. Therefore such seemingly small corrections became a heavy distortion. "Je größer die Individualität der Schöpfung ist, desto eher wird eine Entstellung eintreten können."[9]. The personal interest of the plaintiff whose Haiku so clearly shows her individuality could be surely injured through the correction of the defendent 2).

3. Does the modification of this Haiku come under Art.20-(2)-(iv)jap.copyright ?

In accordance with usual interpretation, the exception provision Art.20-(2)-(iv) applies only to really inevitable modifications. This concept namely must not be interpreted in a broad sense, but in a narrow sense[10]. While Art.20-(2)-(i)~(iii) contain the concrete provisions, Art.20-(2)-(iv) contains very abstract provisions. According to Saito's opinion[11], this provision must be therefore very carefully applied or interpreted as it is formulated very abstractly and ambiguously. In this context, there is a judgement which applied Art.20-(2)-(iv), namely the case "Sweet Home"[12]. In this case, the question concerned the trimming(mutilation) of film for television and videofilm format. This judgment was, however, criticized because there was already at that time a technique with which a trimming could be avoided[13].
There is at any rate also a judgment which refused to apply Art.20-(2)-(iv), namely the case "A Prize Thesis at the Hosei University(Appeal)"[14]. It was decided in this case that the modifications by the university about the punctation marks, a declensional kana ending and a new paragraph of a student's thesis do not come under Art.20-(2)-(iv). As the court stated in respect of scientific work in this case, there is no legal rule which prescribes these modifications. There is also no legal rule which is relative to literary, scientific work, like Haiku, and allows such modifications. Such modifications do not come under Art.20-(2)-(iv). This is for the reason that an artistic or aesthetic value judgement can never be an object of judicial judgment. "Die Kunst ist nicht justiziabel"[15].

4. Did the plaintiff consent to the considerable Haiku correction ?

It could be assumed that the plaintiff consented in principle to Haiku correction by the defendent 2), having recognized him as a selector. Did she however consent to such a considerable Haiku correction? Perhaps she expected only a minute correction, for example "pull" instead of "draw". But she did not certainly expect a correction which modified the sense of her Haiku so essensially. In this case, her consent is considered in sense of the provision in a Article 21 paragraph 3 of the Austrian copyright as "Einwilligung zu nicht näher bezeichneten Änderungen" [16]. This provision makes clear that there is a difference between a consent not to detailed marked modifications and a consent to concrete marked modifications[17]. If the plaintiff had expressly, although this would be unlikely, given a consent to the above-mentioned correction by the defendant 2), the defendant 1) could publish the corrected Haiku as the plaintiff's Haiku. But that is, in this case, out of the question.


V

In Japanese copyright law, the will or the consent of the author plays an important part[18]. The author can prohibit any distortion, mutilation, and modification against his will. But it has been suggested, that this legal emphasizing of the will of the author would appear to create a problem, because the will of the author is always subjective and could not be judged objectively. However in reality no such problem arises; it can be established actually, that the plaintiff expected a slight modification but could not consent to such a considerable, sense modifying correction. This fact can be confirmed in objective terms.
I think, that the Tokyo District Court had to refer more to the problem of the will and the consent of the plaintiff, for the will of the holder of right (the author) must be the decisive principle of modern civil law.
A Haiku poet comments that this case presented a serious problem through a excessive correction by a teacher[19]. The thought or the feeling of a poet is expressed very intensively in his Haiku. The personality of a poet is stamped deeply in 5-7-5 syllables.
The personality of a Haiku pupil therefore should not be infriged in a frivolous manner, because she is a Haiku beginner. The custom of Haiku composing should not be closed, because the Haiku are appreciated by many people in the international arena. Rather a new rule for the community of Haiku poets which respects the individuality and personality of the pupil highly is required.


Notes

I wrote this contribution during a stay in Max-Planck-Institut für ausländisches und internationales Patent-, Urheber- und Wettbewerbsrecht, München as a scholar. I would thank Hon. Professor Adolf Dietz heartily for his help by this work .

[1] Amendments by: Law No.101, of June 12, 1998
[2] Tokyo District Court judgment of August 29,1997; Hanrei Jihô Nr.1616.pp.148 et seq.
[3] Englisch: "Haiku publisher of Japan Broadcasting Corporation"
[4] See, "NHK Shuppan Haiku" October/November 1993, p.71.
[5] a famous Haiku poet in Edo period(1644-1694)
[6] With "NHK Shuppan Haiku" comparable is also the magazine "Haiku Asahi", which is published with about 100,000 copies.
[7] "Ai"(about 800copies), "Shunrei"(about 2,000copies), "Kari"(about 3,000copies), "Araragi" (about 3,400copies) etc. are the Haiku magazines as Shusaishi.
[8] like in this case, two same sounded words, but different meaned words
[9] Möhring/Nicolini, Urheberrecht, 1970, S.141f.
[10] See, Moriyuki KATO, Chosakukenhô Chikujôkôgi, 1994, p.140.
[11] See, Hiroshi SAITÔ, Gaisetsu Chosakukenhô 3Editions, 1996, p.196.
[12] See, Tokyo District Court judgment of July 31, 1995; Hanrei Jihô, Nr.1543. pp.161 et seq.
[13] See, Daisuke YOSHIDA, "additional compensation of film director and the moral right", Jurist, Nr.1091, p.236.
[14] Tokyo High Court judgment of December 19, 1995; Hanrei Jihô, Nr.1422. pp.123 et seq.
[15] Hubmann, Urheber-und Verlagsrecht, 6.Aufl. 1987, S.37f.
[16] "Die Erteilung der Einwilligung zu nicht näher bezeichneten Änderungen hindert den Urheber nicht, sich Entstellungen, Verstümmelungen und anderen Änderungen des Werkes zu widersetzen, die seine geistigen Interessen am Werke schwer beeinträchtigen."
[17] See, Ulmer, Urheber-und Verlagsrecht, 3.Aufl. 1980, S.217f.
[18] See, Hiroshi SAITÔ, Moral Right System in Japan, UFITA Bd.136/1998, S.206f.
[19] See, Ippô HATTORI, "Shunrei"Nr.41-3, p.34.


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Copyright Update Japan 1999
Published by COPYRIGHT RESEARCH AND INFORMATION CENTER (CRIC).