2005.07.14

2004 (Ju) 930

Minshu Vol. 59, No. 6

Judgment concerning whether or not unfair treatment by an official of a public library in discarding books in the library is illegal under the Law Concerning State Liability for Compensation as violation of personal interests of the authors of the discarded books

Case to seek damages

Judgment of the First Petty Bench, quashed and remanded

Tokyo High Court, NaNa Branch, Judgment of March 3, 2004

Where a public official working at a public library, in discarding some books from the books that are available to the public in the library, treat certain books in an unfair manner based on his/her dogmatic evaluation or personal preference regarding the books or authors, such unfair treatment is illegal under the Law Concerning State Liability for Compensation as violation of personal interests held by the authors of the discarded books.

Article 1(1) of the Law Concerning State Liability for Compensation, Articles 2 and 3 of the Library Law, and Articles 13, 19, and 21(1) of the Constitution

Article 1(1) of the Law Concerning State Liability for Compensation
When a governmental official who is in a position to exercise the public authority of the State or of a public body has, in the course of performing his duties, illegally caused damage to another person either intentionally or negligently, the State or the public body concerned shall be liable to compensate such damage.

Article 2 of the Library Law
(Definition)
1. In this law, a "library" refers to facilities established by local public bodies, the Japanese Red Cross Society, or corporations set forth in Article 34 of the Civil Code (Law No. 89 of 1896) (excluding libraries affiliated to schools) that collect, compile, and store books, records, and other necessary materials in order to make them available to the public with the aim of contributing to their education, research, study, recreation, etc.
2. Among libraries provided in the preceding paragraph, libraries established by local public bodies shall be referred to as public libraries, and libraries established by the Japanese Red Cross Society or corporations set forth in Article 34 of the Civil Code shall be referred to as public libraries.

Article 3 of the Library Law
(Library services)
Libraries shall, for the purpose of providing library services, make efforts to perform the duties set forth in the following subparagraphs, while giving consideration to local circumstances and public needs and aiming to support school education.
(1) Collect books, records, materials for audio-visual education, and other necessary materials (hereinafter referred to as "library materials"), while also giving due consideration to collection of materials on the local community, materials on local administration, works of fine art, sound recordings, and film recordings, and make these materials available to the public.
(2) Classify and organize library materials appropriately and develop catalogues thereof.
(3) Ensure that library officials acquire adequate knowledge on library materials and are capable of providing consultation on the use of such materials.
(4) Develop close connections and cooperation with other libraries, the National Diet Library, libraries affixed to the assemblies of local public bodies, and libraries affiliated to schools, so as to exchange library materials with them.
(5) Establish branch libraries, reading centers, and book distribution centers, and other relevant facilities, and also operate bookmobiles and rotating lending libraries.
(6) Hold and promote reading sessions, study sessions, sessions for playing sound recordings or film recordings, and exhibitions.
(7) Present and provide information and reference materials on current events.
(8) Develop close connections and cooperation with schools, museums, community centers, research institutes, and other relevant institutions.

Article 13 of the Constitution
All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Article 19 of the Constitution
Freedom of thought and conscience shall not be violated.

Article 21(1) of the Constitution
Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

The judgment of the second instance shall be quashed with respect to the part concerning the jokoku appellee.
This case shall be remanded to the Tokyo High Court with respect to the part mentioned in the preceding paragraph.

Concerning the grounds for the petition for accepting the jokoku appeal argued by the attorneys for jokoku appeal UCHIDA Satoshi, et al.
1. The outline of the facts determined by the judgment of the second instance is as follows.
(1) Association A, one of the jokoku appellants, is an unincorporated association established at the inaugural meeting on January 30, 1997 (hereinafter referred to as "Jokoku Appellant Association A"), and it is intended to "plan and propose the development of new history and civics textbooks and other textbooks and provide such textbooks for pupils and students." Other jokoku appellants are the directors or supporters of Jokoku Appellant Association A (Jokoku Appellant B is the successor in the suit of Plaintiff C of the first instance who was a director of Jokoku Appellant Association A; when the phrase "jokoku appellants" is used in this judgment, it may exclude Jokoku Appellant B and instead include Plaintiff C of the first instance).
(2) The jokoku appellee, in accordance with the Funabashi City Library Ordinance (Funabashi City Ordinance No. 22 of 1981), established the Funabashi Chuo Library, the Funabashi Higashi Library, the Funabashi Nishi Library, and the Funabashi Kita Library, and laid down the Funabashi City Standards for Deregistration of Library Materials as the standards for deregistering library books stored in these city libraries (hereinafter referred to as the "Deregistration Standards").
The Deregistration Standards set forth the following materials as "library materials to be deregistered": (i) materials that were reported missing as a result of stock-checking, and have been missing for three years since then; (ii) materials that have been uncollectible from borrowers for not less than three years, despite the library's efforts for collection; (iii) materials that have been stained, damaged or lost and therefore compensated by a user; (iv) materials that have been lost in a disaster or accident of Force Majeure; (v) materials that have been stained or damaged irreparably; (vi) materials that have become obsolete and lost value; (vii) materials that have been used less frequently and are unlikely to be used in the future, and therefore regarded to have lost value; (viii) materials that need to be replaced with new editions or revised versions; (ix) magazines that have gone beyond the retention period set by the library.
(3) During the period from August 10 to 26, 2001, an official who worked at the Funabashi Nishi Library as a librarian (hereinafter referred to as the "Librarian"), because of his/her own negative view and antipathy of Jokoku Appellant Association A and its supporters as well as their books, on his/her own judgment, instructed other officials to bring a total of 107 books written or edited by the jokoku appellants that were stored in the library (including books written by persons who were not supporters of Jokoku Appellant Association A), and discarded these books following the procedures to deregister them from the library catalogue in the computer, despite the fact that these books did not fall under the scope of "materials to be deregistered" set forth in the Deregistration Standards (this event shall hereinafter be referred to as the "Discard").
The number of books involved in the Discard is indicated in List 2, entitled "List of Numbers of Books Deregistered," attached to the judgment of the first instance by author/editor, and the breakdown of such books written or edited by the jokoku appellants is indicated in List 1, entitled "List of Deregistered Books," attached to the judgment of the first instance (except for Books No. 20, 21, 24, and 26).
(4) The Sankei Shimbun (a nationwide newspaper) reported that as of April 12, 2002, about eight months after the Discard, 43 of 44 books written by D and 25 of the 58 books written by E, which had been stored at the Funabashi Nishi Library, had been discarded in August 2001. The public came to know of the Discard through this newspaper article.
(5) On May 10, 2002, the Librarian submitted to the chairperson of the Funabashi City Board of Education a written statement that she had made the Discard. On May 29, the Board of Education took a disciplinary action against the Librarian consisting of a 10% monthly salary cut for six months.
(6) Among the books involved in the Discard, 103 books were restored in the Funabashi Nishi Library by July 4, 2002, through the donation of new ones by five officials who belonged to the Life Education Section of the Funabashi City Board of Education, including the Librarian. The other four books were difficult to obtain, so the five officials donated to the library different books written by the same authors for replacement of the discarded books.

2. This is a case in which the jokoku appellants, alleging that they have suffered mental distress due to violation of their personal interests as authors of the books involved in the Discard, seek compensation for non-pecuniary damage from the jokoku appellee in accordance with Article 1(1) of the Law Concerning State Liability for Compensation and Article 715 of the Civil Code.

3. The court of the second instance dismissed the claim made by the jokoku appellants, on the following grounds.
It is construed that authors are not legally entitled to request the library to buy their books, and even where the library has bought their books, the authors are not legally entitled to go so far as to make specific requests to the library regarding how to make their books available to the public, unless the library violates their copyright or moral rights. Therefore, the authors of the books stored and made available to the public by the jokoku appellee's library do not have any legal rights or interests with respect to the fact that their books are stored and made available to the public by the library. Consequently, the jokoku appellants' argument, which is based on the premise that their rights or interests have been violated by the Discard, cannot be accepted.

4. However, the judgment of the second instance mentioned above cannot be accepted on the following grounds.
(1) Library are "facilities (...) that collect, compile, and store books, records, and other necessary materials in order to make them available to the public with the aim of contributing to their education, research, study, recreation, etc. (Article 2(1) of the Library Law). They are also referred to as "organizations for social education" (Article 9(1) of the Social Education Law), and regarded as facilities aimed at creating an environment where the state and local public bodies are able to develop the cultural literacy of the public (see Article 3(1) of the said law and Article 7(2) of the Fundamental Law of Education). Public libraries are public facilities established by local public bodies in order to achieve this aim (Article 2(2) of the Library Law, Article 244 of the Local Autonomy Law, Article 30 of the Law Concerning Organization and Operation of Local Educational Administration). Libraries shall, for the purpose of providing library services, make efforts to (i) collect library materials and make them available to the public and (ii) classify and organize library materials appropriately and develop catalogues thereof (Article 3 of the Library Law). In particular, with respect to public libraries, the Minister of Education, Culture, Sports, Science and Technology shall lay down desirable standards for the establishment and operation of libraries, and provide the standards for the boards of education and for the public (Article 18 of the said law). The "Desirable Standards for the Establishment and Operation of Public Libraries" provided by the Minister of Education, Culture, Sports, Science and Technology as of July 18, 2001 (Ministry of Education, Culture, Sports, Science and Technology Notification No. 132), require the persons responsible for the establishment of public libraries to make efforts to provide library services for the public in accordance with the standards. More specifically, the standards provide that in collecting and making available library materials, public libraries shall (i) give due consideration to residents' needs, which are becoming more sophisticated and diversified, so as to provide appropriate support for their learning activities, (ii) strive to improve the data processing function and develop an effective and speedy service system for the convenience of a wide range of residents, and (iii) make efforts to increase the variety and quantity of books stored, by acquiring new books and magazines in a timely manner and developing cooperation with other libraries, so as to fulfill their functions sufficiently, thereby satisfying the residents' needs.
In light of the role and functions mentioned above, public libraries can be regarded as public facilities aimed at providing residents with library materials including those relating to various ideas, opinions and other information, thereby improving the cultural level of residents. Officials of public libraries shall, in order to enable public libraries to play such a role, assume an official duty to treat library materials in a fair manner, without adhering to their own dogmatic evaluation or personal preference, and therefore if they discard, because of their own dogmatic evaluation and personal preference, some books that are made available to the public in the library, such discard should be deemed to be in violation of their basic official duty as library officials.
(2) On the other hand, assuming that, as mentioned above, public libraries can be regarded as public facilities aimed at providing residents with library materials, it would follow that authors of the books being made available to the public at the public libraries can regard public libraries as public places for communicating their ideas and opinions to the public. Therefore, if an official of a public library discards some books that are available in the library in an unfair manner, namely, by reason of the authors' ideas and opinions, such unfair treatment should be deemed to be unreasonably prejudicial to the authors' interests in communicating their ideas and opinions to the public. Considering that the Constitution guarantees authors freedom of thought and freedom of expression as basic human rights, it is reasonable to construe that such interests held by authors of books that are available to the public in public libraries are personal interests that deserve legal protection, and if a public official working at a public library, in discarding books that are available to the public in the library, in violation of his/her basic official duty, treats some books in an unfair manner because of his/her dogmatic evaluation and personal preference as to the books or authors, such unfair treatment should be regarded illegal under the Law Concerning State Liability for Compensation as violation of personal interests held by the authors of the discarded books.
(3) According to the facts mentioned above, the Librarian who worked at the Funabashi Nishi Library, a public library, conducted the Discard because of her negative view and antipathy of Jokoku Appellant Association A and its supporters as well as their books. Therefore, it must be said that the authors' personal interests mentioned above have been violated by the Discard.

5. Consequently, the judgment of the second instance, which dismissed the jokoku appellants' claim against the jokoku appellee on the grounds that contravene this reasoning, contains an apparent violation of laws that has affected the judgment. The jokoku appellants' arguments are well-grounded in this respect, and the judgment of the second instance should inevitably be quashed with respect to the part concerning the jokoku appellee. For further examination, this case shall be remanded to the court of the second instance with respect to the said part.

Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice YOKOO Kazuko
Justice KAINAKA Tatsuo
Justice IZUMI Tokuji
Justice SHIMADA Niro
Justice SAIGUCHI Chiharu