Where is the boundary between moral rights of authors and defamation? Tasuku Mizuno x Sadaaki Kato x Takayuki Fukatsu [Part 3]

Note: This article is a transcript of a conversation/interview held on January 28, 2019.

Copyright law exists to develop culture by balancing the free use of information with the protection of the rights of authors and copyright holders (Part 1). We have previously discussed copyright infringement with concrete examples (Part 2). This time, we focus on "moral rights of authors" and ask lawyer Tasuku Mizuno about various issues related to expression, such as the boundary of defamation.

What rights are granted to authors?

Kato Could you explain in detail what kind of rights authors have?

Mizuno Yes. The rights that arise in a copyrighted work include "copyright" and "moral rights of authors."

Copyright is a right that covers the economic aspect, allowing one to exclusively use a copyrighted work, license it to third parties, and receive royalties. Furthermore, copyright can be transferred and converted into money. It can also be entrusted to third parties like JASRAC in the music industry, or used as collateral for loans. The person who holds the copyright is called the "copyright holder."

Moral rights of authors are rights that belong to the person who created the work, the "author," and cover the personal aspect. Since these are strictly related to honor, feelings, and personality, they cannot be transferred to third parties. Three rights are recognized: the "right of publication," which determines when and how to publish or whether to publish at all; the "right of attribution," which allows one to decide whether or not to include a credit on the work; and the "right of integrity," which prevents unauthorized alterations.

A "copyright holder" is a person who holds the copyright, which is an economic right, while an "author" is the creator who actually created the work and holds the moral rights. Sometimes the "copyright holder" and the "author" are the same person, but if the copyright has been transferred, they may be different people.

Kato Speaking of the right of integrity, there was the "Ofukuro-san incident (*1)."

(*1) An incident where lyricist Yasushi Akutagawa claimed copyright infringement against singer Shinichi Mori, alleging that Mori had unauthorizedly altered the lyrics of the song "Ofukuro-san," which Akutagawa had written.

Mizuno Yes, exactly.

Kato For example, if a part of a coherent statement on Twitter is cut out and posted on a third party's blog with a different intent, does that constitute an infringement of the moral rights of the author?

Mizuno If the original Twitter statement is a copyrighted work and it is recognized as a lawful "quotation," it does not constitute an infringement of the moral rights of the author, except in exceptional cases where it is done in a way that harms the author's honor or reputation.

Conversely, if it does not fall under a lawful "quotation," and the person who reposted it cuts out only a part of it in a way that intentionally distorts the intent of the original statement, there is a possibility that it could be an infringement of the moral rights of the author.

Fukatsu Even outside of tweets, content from articles or lectures can be too long and cut in ways contrary to the original intent, so in the internet age, the right of integrity tends to become an issue, doesn't it?

Mizuno That is true. For authors, the right of integrity is a very important right.

However, in this internet age where information is so easily distributed, and in an era where not only professional creators but also ordinary people are widely becoming authors, the view and opinion that the current moral rights of authors, which can easily stop the flow of information, might be too strong is often heard among scholars, lawyers, and other practitioners. The case mentioned last time, where trimming via a Twitter retweet was judged to be an infringement of the moral rights of the author, is one such example. I personally think that the right of integrity, in particular, should be weakened a little more.

What is the scope of "quotation"? The important thing is not to become the "main" content

Kato And one more thing. "Quotation" is recognized under copyright law, right? It is a right for third parties to use someone else's copyrighted work, and it is an important right when writing articles on note as well.

Fukatsu The point of 'quotation' is that you can use it without permission, without needing to get consent from the author, right?

Mizuno That's correct. At the beginning of this discussion, I mentioned that copyright law is a set of laws and rules designed to balance the protection of the rights of authors and copyright holders with the free use of information. 'Quotation' can be said to be a mechanism for restricting copyright under certain conditions to allow for the free use of information.

Kato So the problem is the definition of 'quotation.' If you're not careful, it just becomes plagiarism or theft. Is there a clear definition for the boundary between quotation and plagiarism?

Mizuno In order for a 'quotation' to be recognized, it is necessary that your own work and the quoted part are clearly distinguished, that there is a relationship where your own work is the 'main' and the quoted part is the 'subordinate,' and that there is a necessity for the quotation. Also, you must indicate the source, meaning you must provide credit, otherwise it becomes a violation.

Fukatsu So it's not just a matter of giving credit, then.

Mizuno Yes. The boundary of whether something is recognized as a 'quotation' or whether it is legal is actually quite unclear. In particular, there are few court precedents regarding 'quotations' for commercial purposes, and there are various theories on how to think about it. Because of this, many commercial enterprises take the stance of obtaining permission from rights holders even for things that are clearly recognized as 'quotations' in order to avoid the risk of claims.

Kato For example, if you include one line of lyrics in a book, do you not need permission?

Mizuno If there is a necessity for the quotation, it is a case that can be recognized as a legal 'quotation' without obtaining permission from the rights holder.

Kato For example, is there no problem if I put the entire 1,500 characters of the lyrics to Hibari Misora's 'Kawa no Nagare no Yo ni' into a 20,000-character text?

Mizuno Logically, if the necessity to 'quote' the entire text is recognized, there is no problem, but in reality, even when 'quoting' for criticism or the like, I think it is often sufficient to use only a part rather than the whole. Therefore, you should carefully consider the part and amount you 'quote'.

Kato What about quoting graphs and such?

Mizuno Statistical data that is factual, or graphs and tables that display it using common methods, are highly unlikely to be copyrighted works in the first place. Of course, it depends on the situation.

Fukatsu As long as it doesn't have high artistic quality, like a watercolor painting of birds dancing in a graph, it should be fine.

Kato But there are also graphs that were created by researching vast amounts of material and spending a lot of time. Don't those become copyrighted works?

Mizuno That's true. Even if such a graph were a copyrighted work, it is possible to use it by fulfilling the requirements for 'quotation' and adding credit, etc.

Kato Then, what about cutting out a panel from a manga and posting it on Twitter?

Fukatsu You often see things on the internet where the dialogue in the speech bubbles has been changed, right?

Mizuno This is also a case-by-case situation; if done skillfully, there is a possibility that it could fall under 'quotation,' but in reality, I think it rarely meets the requirements for 'quotation.' If you change the dialogue, it also becomes an infringement of the author's moral rights. I like this kind of Twitter culture myself, but it is an area where there is a gap with the law.

Is using a celebrity's photo or name out or safe?

Kato This is also just to confirm, but is it okay to sell something that quotes someone else's copyrighted work?

Mizuno Of course. "Quoting" famous sayings in books is an everyday occurrence, and you can see plenty of "quotes" in paid articles sold on note as well.

Kato Then, for example, could I make a book filled with many of Fukatsu-san's tweets and sell it as "The Collected Sayings of Takayuki Fukatsu" (laughs)?

Mizuno Actually, I think there are many books out there that are like collections of famous sayings by celebrities, but the conclusion of whether it can be called a "quote" depends on whether the relationship is such that the quoted part is the "subordinate" and the other parts are the "principal," from the perspective of quality and quantity.

Also, if it's a collection of sayings by historical figures, the copyright has often already expired, so you can use them freely.

Kato What about using a celebrity's photo in your own copyrighted work?

Mizuno You can "quote" it as a photographic work, but if you make money using a celebrity's portrait, the infringement of the right of publicity becomes a separate issue.

Kato The right of publicity is a new concept. Could you explain that a little?

Fukatsu It's the right to protect a celebrity's face and name, right?

Mizuno This is a different right from copyright, which is the subject of today's discussion. It is not written in the law, but it is a right recognized by judicial precedent. It is easily confused with portrait rights, but while portrait rights are rights that everyone has with strong aspects of privacy and personality rights, the right of publicity is a right that celebrities have with strong economic aspects.

Fukatsu For example, you can't just go around selling things by saying "This is recommended by Takuya Kimura" without permission, right?

Mizuno That's not allowed. In the past, there was a case (*2) where a book that compiled Hidetoshi Nakata's statements, episodes from his private life, and poems he wrote in junior high school without his permission was disputed over whether it constituted an infringement of the right of publicity.

(*2) A case where a book summarizing Hidetoshi Nakata's life was published without his permission or interviews, leading him to seek an injunction and damages.

Kato By the way, what is the definition of a "celebrity"?

Mizuno Whether they have customer-attracting power. In other words, whether products or services can be sold using that person's name or portrait; it doesn't necessarily ask if they are generally famous. In modern terms, "influencer" might be the closest word. Fukatsu-san and Kato-san also have customer-attracting power in certain fields, so I think you are included in the celebrities referred to here.

Kato Then, would it be out of bounds if I sold content called "Takayuki Fukatsu Design School" for 30,000 yen?

Mizuno That would be out of bounds if Kato-san did it without Fukatsu-san's knowledge (laughs).

Fukatsu Is it safe for weekly magazines to write stories about celebrities and sell them?

Mizuno Regarding this, there is a Supreme Court judgment on the right of publicity in a case where a weekly magazine published photos of Pink Lady without permission. However, the Supreme Court judged that infringement of the right of publicity is limited to cases where the purpose is exclusively to use the customer-attracting power possessed by a celebrity's portrait, etc., and that the content of this weekly magazine article did not fall under this.

Kato As a practical matter, if a celebrity's portrait, etc., cannot be used without consent in reporting on celebrities, there is a risk that reporting will be significantly restricted.

Mizuno That's right. Also, in relation to "quoting" under copyright law, in cases where it is recognized as a "quote," it is often judged that it does not constitute an infringement of the right of publicity either, because it does not fall under the category of exclusively using customer-attracting power, but was used for the purpose of supplementing the content of the article.

Where is the boundary between criticism, abuse, and defamation?

Kato Also, moving away from copyright, defamation is also difficult when it comes to celebrities and the media. Where does defamation begin?

Mizuno Here, I will discuss defamation as a civil liability, and we will consider it by dividing acts that constitute defamation into "statement of facts" or "opinion and commentary." If facts are being conveyed, the illegality is removed if there is public interest, the purpose is for the public good, and the underlying facts are true or there are reasonable grounds to believe they are true.

Kato So, reporting is okay because it has public interest. There is also a separate debate about whether celebrity gossip has public interest, or what exactly constitutes reporting.

Mizuno That's right. This area is always a subject of debate. Freedom of expression and individual rights such as copyright, defamation, and privacy are always adjusted in balance with public interest. Regarding celebrity gossip, because it is often tied to advertisements like TV commercials, public interest tends to be more easily recognized; however, in the case of athletes or artists, I think there are cases where public interest is denied and it is legally judged to be defamation.

Kato So your opinion is that there are cases where gossip about athletes or artists might not be recognized as having public interest.

Mizuno Yes. On the other hand, regarding opinion and commentary, since freedom of expression is guaranteed, defamation is difficult to establish, but if it "goes beyond the scope of opinion or commentary, such as by resorting to personal attacks," it constitutes defamation. Regarding this, it is judged comprehensively by looking at the specific content of the expression, persistence, the attributes of the victim, and the presence or absence of provocative acts.

Fukatsu What about the act of disparaging a specific person on Twitter?

Kato Exactly. For example, does tweeting "I think ~ is an idiot" on Twitter not constitute defamation?

Mizuno Since it is an opinion or commentary, it basically does not constitute defamation. However, there is a possibility that criminal liability for the crime of insult could be established separately.

Fukatsu Is it dangerous if it goes as far as "You are an idiot and scum and it would be better if you didn't exist in this world"?

Mizuno It depends on the context, but if it is repeated persistently, I think there is a possibility that defamation could be established. Also, as mentioned earlier, the crime of insult is established as a criminal liability.

Kato By the way, under which law is defamation punished?

Mizuno What I was talking about just now is defamation as a civil liability, which is defined in the Civil Code as a tort. On the other hand, there is also criminal liability for the crime of defamation, which is defined in the Penal Code.

Fukatsu So there is a criminal side too. Is that also a crime prosecuted only upon complaint?

Mizuno That's right. Filing a criminal complaint for defamation, including gathering evidence, has a fairly high hurdle. Pursuing civil liability is easier to do.

What about recommending stock picks or horse racing predictions? How far can you go with adult content?

Kato Aside from copyright, may I ask a little more about how far you can legally go with expression? Since creators are likely curious about things related to freedom of expression.

Mizuno Of course.

Kato So, what about recommending specific stocks by saying they will go up?

Mizuno That is not allowed if there is compensation involved. This is stipulated by the FIEA (Financial Instruments and Exchange Act). If you receive payment for advice that delves into the types of securities, specific stocks, or timing of trades, it falls under the category of 'investment advisory business'.

Fukatsu So you need to register as an investment advisory business, right?

Kato Then what about predicting winning horses in horse racing?

Mizuno I don't think publishing predictions is explicitly prohibited by law. However, organizations like the JRA (Japan Racing Association) do issue warnings about it.

Kato Regarding adult content, how far can you go legally in terms of expression?

Mizuno That is a matter of criminal liability regarding obscenity laws, but it is difficult to state the criteria in a single word. 'Obscenity' is the keyword, but since it is judged based on the vague standard of 'whether it unnecessarily stimulates sexual desire,' there are parts that remain unclear until a court makes a ruling.

Content involving minors is very strictly regulated under the Child Pornography Prohibition Act. For nudity, whether or not genitals are visible is one criterion, but it doesn't mean that if genitals are visible, it is immediately out. There are Supreme Court precedents that have denied the obscenity of photo books featuring unedited genitals.

Kato What? Genitals are okay!?

Mizuno In the past, UPLINK president Asai won a case in the Supreme Court regarding a Mapplethorpe photo book, ruling that it did not constitute an obscene publication. The Supreme Court denied the obscenity of the photo book as a whole, citing reasons such as the high artistic value of Mapplethorpe's photos and the fact that only about a dozen pages out of over 300 featured genitals.

Kato Genitals themselves aren't erotic; they are just a part of the human body, after all.

Mizuno That's right. The idea that realistic depictions in a normal state do not stimulate sexual desire is gradually spreading, and I have the impression that there are more art-focused photo books and videos that do not blur genitals. However, in cases like the Takano Ryudai incident at the Aichi Prefectural Museum of Art or the arrest of Leslie Kee, I have heard that even if there is no direct depiction of sexual acts, things that imply 'entanglement' or show two people together in a way that suggests sexual activity are still considered off-limits.

In any case, there is a possibility that the standards of the police and the courts differ, and since it is operated very ambiguously, it seems that in the end, many people choose to self-regulate to account for the risk.

Kato So, if it implies a sexual act, it's a no-go, but if it's just existing, it's okay. I see. That's deep, or maybe not (laughs).

To be continued.

[4 parts in total]
What is copyright in the first place? (Part 1)
What specifically constitutes copyright infringement? (Part 2)
What are the boundaries of moral rights of authors? (Part 3)
To continue creating freely without infringing on copyright (Part 4)

■ Lawyer Tasuku Mizuno Profile
Lawyer (City Lights Law). Director of Creative Commons Japan. Director of Arts and Law. Part-time lecturer at the University of Tokyo Graduate School of Interdisciplinary Information Studies and Keio University SFC. Senior Researcher at SFC Research Institute (Legal Design Lab). Good Design Award judge. Engaged in hands-on legal services and cutting-edge/strategic legal affairs for startups and new business/management planning departments of large companies in the IT, creative, and urban development fields. Also serves as a committee member and advisor for government and local municipalities. Author of 'Design of Law - Creativity and Innovation are Accelerated by Law', co-author of 'The Secret to Ideas that Create 0→1', 'Open Design: The Future of Making Born from Participation and Co-creation', etc. Twitter :
@TasukuMizunonote note:
@tasukumizuno