Asking again about 翻刻 copyright

[Chris Kern]

Dear list members,

I asked a question 13(!) years ago but I wanted to ask it again to be a bit more specific and see if anyone had other insights.

The question deals with whether publishers can assert copyright over the text of manuscripts they have published in facsimile. For instance, if you take one of the Reizeike bunko volumes and make a 翻刻 of the manuscript and put it on the web, is that a violation of copyright?

An example would be a site like Eiichi Shibuya's Genji site (http://www.sainet.or.jp/~eshibuya/index.html), which has 翻刻 of the Oshima-bon, Myoyu-bon, and a few other texts. He indicates that he did the honkoku from the published facsimiles and I don't see any statement of copyright permissions (in fact, he encourages using at least his 校訂 text freely in other projects).

It would make logical sense to me if a publisher could assert copyright over specific images of manuscripts that were created for their publications, but not over the actual text depicted in the images. But logic doesn't always determine law, of course.

This question has special relevance for digital humanities projects that list members might be considering.

Sincerely,

Chris Kern, Auburn University

[Avery Morrow]

Hi Chris, the legal answer to your question seems straightforward: the
mere input of data is not copyrightable. In terms of digitizing modern
facsimiles of pre-1900 manuscripts, only the presentation of the data
(for instance, typesetting on the page) is copyrightable, so 翻刻 or OCR
would eliminate any copyrightable elements.

https://datamanagement.hms.harvard.edu/share-publish/intellectual-property

I don't think much else needs to be added on the legal side of things,
but there is the interesting cultural issue of publishing documents
obtained in Japan. I recently photographed an old temple illustration
from a private collection. The municipal library which manages the
collection told me that *every* future use of this illustration will
require me to contact them each time, and they will ask the private
owner for me. (I tried to get blanket permission for academic use and
was denied.) Legally, I have taken my own photos of this premodern
image and I may do with them what I want. But doing so would naturally
endanger my ability to access this collection in the future. I don't
think this caveat applies to manuscripts which one can find in
publications, as I don't think municipalities or sects create
blacklists of researchers who covertly digitize files from their
shiryōhen, but that is only my intuition.

Avery

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[Lani Alden]

I am not a lawyer, and I have heard several other scholars (who are also not lawyers) repeat the claim that images presented in a facsimile edition (of prints, paintings, pages, etc) are the copyright of the person who took them. I have heard plenty of stories of Japanese museums or personal collectors charging for the use of Edo period images in monographs, for example.

However, I am deeply skeptical of this entire affair. I do not know Japanese copyright law all that well, but in US law it seems clear to my layperson's eyes that a photo or a scan of a painting out of copyright is itself only copyrightable if the photo or scan is transformative of the original content. So a high quality scan of a page from an Edo period book would not be copyrightable, I believe. Indeed, a facsimile of a public domain text would seem to be definitionally out of copyright precisely because a facsimile is meant to be a copy without additions. In fact, at least from my non-lawyer perspective, the better the copy, the less copyrightable it would end up being. Disney can no longer assert copyright over Steamboat Willie, even if they came out with a high quality scan of it: they could only assert copyright over any supplemental materials they provided alongside it (commentary, extras, etc). The same rules would seem to apply here.

And the 翻刻 wouldn't be copyrightable either, I don't believe, unless they added content (like commentary) that you then reproduced. Though actually, since the 翻刻 is a transcription, I wonder if that is considered transformative of the original image/source text since it was presented in kuzushiji? Then again, if two 翻刻 would reasonably be identical for the same text, I do not know how you would differentiate them as being separate 'transformations' so the point is probably moot.

Of course, as Avery says, there is a cultural aspect - just because something is legal does not mean that you could do it without suffering social consequences (blacklisting, for example). So it might be best to just grumble and pay up/request access even though you technically do not need to.

Lani Alden

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[Chris Kern]

Thank you to everyone who has responded so far (including off list).

What I am trying to do is get texts of some poetry anthologies that I can reproduce (at least in part) in a non-commerical digital humanities project. One option would be to use public domain texts like the 正保四年版本 (i.e. the old 国歌大観) but depending on the anthology the texts in those editions have some fairly significant differences, not the least in the ordering and number of poems. So the other option is to use the same texts that are used in modern editions, that have been published in facsimile. In other words, this is not an issue of providing a new transcription a manuscript that nobody has done a 翻刻 of. 

Sincerely,

-Chris Kern, Auburn University

On Mon, Oct 20, 2025 at 9:24 PM Chris Kern <chris...@gmail.com> wrote:

Dear Mikhail (please call me Chris!)

Thank you for your response -- the texts in question I would like to use are not the kind of semi-private manuscript of the kind you are talking about. I'm looking to use things that have been published in facsimile editions and in some cases already used as the base text for existing editions of the works in question. I would not be the first person to make a honkoku. They would also be used for non-commercial purposes. But maybe none of that matters.

Sincerely,

-Chris

On Mon, Oct 20, 2025 at 9:07 PM Mikhail Skovoronskikh <ms3...@georgetown.edu> wrote:

Dear Professor Kern,

Sorry for responding off-list, but I'd rather not post this to the entire group.

I don't have a legal reference for this, but I have been told in quite unequivocal terms by several individuals that publishing a honkoku does not constitute a breach of Japanese copyright law. The degree of "transformation" in this case is deemed more than sufficient, and the same logic apparently applies to translations. Again, sorry for not being able to adduce the actual legal clause here.

I must add, to echo one of the other commenters here, that while publishing a honkoku without permission is not illegal, it may be strategically ... unwise. To give you an example, my doctoral dissertation was based on an invaluable manuscript only available at Kokubunken and the original private repository. Needless to say, no online availability. But the copyright owner of the original (and, by extension, the microfilms) was kind enough to share it with me and also "let" me use it for my research. Technically, such a "permission" is gratuitous: as long as it's available publicly at Kokubunken, there is no way they could hinder access to it without trying to pull it first. However, if someone were to publish a honkoku of such a manuscript, they would run the risk of ruining their relationship with its owner.

This may sound rather obvious and banal, but I wanted to chime in off-list nonetheless. 

Best regards,

Mikhail Skovoronskikh

--

[William Bodiford]

Dear PMJS:

In my experience --- with religious materials, not literary works ---- 
most honkoku style transcriptions can be (and frequently are)
transformative.

For example: Multiple manuscripts are collated, kana spellings and
grammar corrected (according to the editor's whims), CJK glyphs are
standardized or substituted for one another, punctuation is added or
subtracted, marginalia will be ignored completely or inserted from
alternative sources. Words written in kanji might be converted to kana
and kana passages might be transformed into kanji. Voice marks (dakuten)
will be added or erased. The text will be divided up into phrases,
sentences, and paragraphs where no breaks previously existed. In-text
quotations might be rewritten to agree with recently published versions
of classical texts. The cumulative results of these kinds of changes can
be so drastic as to create new versions that could never have been read
in such a way previously. In short,the honkoku transcription attempts to
translate the linguistic difficulties of the manuscript(s) into the
relative reliability of a readable edition.

In these extreme cases, it might seem reasonable for publishers to
assert copyright claims for the transcriptions that they issue.

... William Bodiford

> publishing a /honkoku /does not constitute a breach of

> Japanese copyright law. The degree of "transformation" in this
> case is deemed more than sufficient, and the same logic
> apparently applies to translations. Again, sorry for not being
> able to adduce the actual legal clause here.
>
> I must add, to echo one of the other commenters here, that

> while publishing a /honkoku/ without permission is not

> illegal, it may be strategically ... unwise. To give you an
> example, my doctoral dissertation was based on an invaluable
> manuscript only available at Kokubunken and the original
> private repository. Needless to say, no online availability.
> But the copyright owner of the original (and, by extension,
> the microfilms) was kind enough to share it with me and also
> "let" me use it for my research. Technically, such a
> "permission" is gratuitous: as long as it's available publicly
> at Kokubunken, there is no way they could hinder access to it
> without trying to pull it first. However, if someone were to

> publish a /honkoku/ of such a manuscript, they would run the

> www.pmjs.org <http://www.pmjs.org>.

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--

William M. Bodiford
UCLA Asian Lang & Cultures
BOX 951540; 290 Royce Hall
Los Angeles CA 90095-1540

Professor Emeritus
https://www.alc.ucla.edu/person/william-m-bodiford/

[Rein Raud]

Dear all,

The initial question was about facsimile editions and in that case, I think, there is no reason to assert copyright whatsoever. As to editorial work, it is better to find out what is the law in a particular country, because there are differences. In Portugal, for example, as I recently found out, editorial work can be copyrighted, but in Estonia, where I live, it cannot.

With best wishes,

Rein

**********************************************

Rein Raud

Distinguished Professor of Asian and Cultural Studies, Tallinn University

Uus-Sadama 5, Tallinn 10120 Estonia

www.reinraud.com

“The Linguistic Carnival of Thought — Comparative Philosophy and the Dynamics of Language” (Bloomsbury 2025)

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