"Creative Expression" vs. "Direct Perception of Essential Features": What's the Core Debate in Japanese Copyright Similarity Analysis?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

The cornerstone for determining copyright infringement based on similarity in Japan is the "direct perception of essential expressive features" test. This standard, notably crystallized by the Supreme Court in the Esashi Oiwake case (June 28, 2001), dictates that a later work infringes an earlier one if a person encountering the later work can "directly perceive the essential expressive features" of the original. While the test itself is established, its precise meaning and the scope of "essential expressive features" are subjects of a significant and ongoing theoretical debate within Japanese copyright law. This debate largely centers on two main interpretative approaches, often referred to as "Creative Expression Monism" and the "Overall Comparison Theory" (or "Independent Significance of Direct Perception Test").

The Esashi Oiwake Standard: A Quick Recap

To understand the debate, it's helpful to recall the key aspects of the Esashi Oiwake judgment. The Supreme Court, in defining an infringing adaptation, essentially made two critical points:

  1. An adaptation involves creating a new work by relying on an existing work and, while maintaining the identity of its "essential expressive features," adding creative modifications, such that a person encountering the new work can directly perceive the essential expressive features of the existing work.
  2. Conversely, if a work created based on an existing work only shares identity with the original in parts that are not expression itself (such as ideas, facts, or incidents) or in parts of the expression that lack creativity, it does not constitute an infringing adaptation.

The core of the interpretative debate lies in how these statements are reconciled and what "essential expressive features" truly encompasses in relation to "creative expression."

Approach 1: Creative Expression Monism (創作的表現一元論 - Sōsaku-teki Hyōgen Ichigenron)

The first major school of thought, "Creative Expression Monism," posits a straightforward and direct relationship: the concept of "essential expressive features" is fundamentally synonymous with "creative expression."

Core Tenets:

  • Equivalence: Under this view, the "essential expressive features" of a work are precisely its creative parts—those elements of the expression that embody the author's personality and are not mere ideas, facts, or commonplace expressions.
  • Direct Consequence: If a commonality in such creative expression is found between the plaintiff's original work and the defendant's subsequent work, then the "direct perception" test is met, and similarity (for infringement purposes) is established.
  • Interpretation of Esashi Oiwake: Proponents of this theory tend to see the two key pronouncements in the Esashi Oiwake judgment as effectively articulating the same core principle from different angles: copyright infringement (specifically, an infringing adaptation) occurs if, and only if, there is a taking of the original work's creative expression. The absence of shared creative expression means no "direct perception" and thus no infringement.
  • Underlying Rationale: This approach aligns closely with the fundamental tenet of copyright law (e.g., Article 2(1)(i) of the Japanese Copyright Act) that protection is granted to "creative expressions." If a defendant has incorporated the plaintiff's creative expression, they have, by definition, utilized the very essence of what copyright law aims to protect.

Implications:
The main implication of Creative Expression Monism is that once a court identifies a shared creative expression between two works, a finding of similarity (and likely infringement, absent any applicable defenses or copyright limitations) follows almost as a matter of course. There isn't a distinct, subsequent analytical step where overall differences in the works could negate this finding if the protected creative core has indeed been taken.

Approach 2: Overall Comparison Theory / Independent Significance of Direct Perception Test (全体比較論 / 直接感得性独自基準説 - Zentai Hikakuron / Chokusetsu Kantoku-sei Dokuji Kijun-setsu)

The second major approach offers a more nuanced, and potentially more flexible, interpretation of the "direct perception" standard. This view, often termed the "Overall Comparison Theory" or the "Independent Significance of Direct Perception Test," suggests that the inquiry doesn't necessarily end with finding some shared creative expression.

Core Tenets:

  • "Essential Features" as Narrower than All "Creative Expression": This theory often conceives of "essential expressive features" as something potentially narrower or more fundamental than the entirety of a work's "creative expression." It might refer to the most defining or core creative elements.
  • Holistic Assessment Beyond Shared Elements: Even if some commonality in creative expression exists, this approach argues that the "direct perception" test involves a further, more holistic evaluation. This evaluation can take into account the overall impression of both works, including significant differences introduced by the defendant, or how the plaintiff's borrowed elements function within the defendant's new work.
  • The "Fading" or "Overshadowing" Concept: A key idea associated with this theory is that the original work's features might "fade" (色あせている - iroaseteiru) or be overshadowed within the context of the new creation. If the defendant has added substantial new creativity, or if the overall impression of the defendant's work is significantly different, it might be concluded that the "essential expressive features" of the original are no longer "directly perceivable," even if some of its creative components are technically present.
  • Interpretation of Esashi Oiwake: Proponents often point to the specifics of the Esashi Oiwake judgment itself. When the Supreme Court found no infringing adaptation of song lyrics in a television program's narration, it noted the "vastly shorter" length of the narration and, significantly, considered the "visual images" (影像 - eizō) that accompanied it. The argument is that these overall contextual factors (differences in medium, length, and the presence of new elements) diluted or obscured the direct perception of the original lyrics' essential features. This suggests that the Court engaged in a comparison that went beyond merely identifying shared lyrical phrases.
  • Potential Influence from Comparative Law: This line of thought sometimes resonates with concepts from other legal traditions, particularly the historical German copyright concept of "freie Benutzung" (free use). Under that doctrine (since reformed), a new, independent work that used an existing copyrighted work could be permissible if the original work's individual characteristics "faded" (verblassen) in comparison to the new work's own distinct individuality. This was sometimes linked to a "creativity correlation theory" (創作性相関関係説 - sōsaku-sei sōkan-kankei setsu), where the degree of originality in the new work influenced whether the use of the old work was deemed "free."

Implications:
This theory allows for a finding of non-infringement even if some creative elements from the plaintiff's work are demonstrably present in the defendant's work. If, on balance, the defendant's work is deemed sufficiently transformative, or if the overall differences are so substantial that the essence of the plaintiff's work is lost or significantly diluted, then the "direct perception" test might not be met. This approach could provide more leeway for transformative uses, parodies, and situations where borrowed elements are minor in the context of a larger, new, and independently creative work. It implies that "essential expressive features" are a qualitatively distinct (and often narrower) subset of all "creative expression."

The Crux of the Debate: Automaticity vs. Further Evaluation

The fundamental disagreement between these two schools of thought lies in the consequence of finding a "commonality in creative expression."

  • Creative Expression Monism suggests that if creative expression is shared, the "direct perception of essential expressive features" is, for all practical purposes, automatically satisfied.
  • The Overall Comparison Theory / Independent Significance of Direct Perception Test argues that the "direct perception" standard can involve an additional evaluative layer. This layer allows a court to consider the totality of the defendant's work, including its new contributions and overall impact, potentially leading to a conclusion that the plaintiff's essential features are not directly perceivable, despite the presence of some shared creative elements.

Visually, one might ask: Is the set of "Essential Expressive Features" coextensive with the set of "Creative Expression"? Or is the former a more restricted subset of the latter?

One of the driving concerns for proponents of the Overall Comparison Theory is the potential for copyright to overreach and stifle legitimate forms of secondary creation, such as parody or transformative uses, if similarity is found too readily based solely on any shared creative element.

However, those who advocate for Creative Expression Monism often argue that such policy concerns about overprotection or the permissibility of certain uses are better addressed not by adjusting the definition of similarity or "direct perception," but through the proper application of copyright limitations and exceptions. Japanese copyright law, like that of other countries, contains provisions that permit certain uses of copyrighted works without the copyright holder's permission under specific circumstances (e.g., for private use, educational purposes, quotation, reporting of current events).

Indeed, Japanese copyright law has seen significant developments in its exceptions framework. For example:

  • Article 30-2 permits the "incidental inclusion" of copyrighted works in certain contexts.
  • Article 30-4, introduced in a major 2018 amendment, allows for certain uses of copyrighted works that are not for the purpose of "enjoying the thoughts or sentiments expressed in the work" (e.g., for text and data mining, or for use in developing AI).
  • Article 47-2 allows for the reproduction of artistic works or photographs for the purpose of offering them for sale or transfer of ownership, under certain conditions.

The argument from the Monist perspective is that as these limitations and exceptions become more comprehensive and flexible, there is less need to use the similarity analysis itself as a tool to achieve policy outcomes like permitting transformative uses. The question of "is the work similar?" should be kept distinct from "is this use permissible?"

The choice between these theoretical approaches can have tangible implications:

  • Predictability: Creative Expression Monism might offer greater predictability. Once it's determined that a specific creative expression has been taken, the path to finding similarity is clearer. This could be seen as offering stronger baseline protection for copyright holders.
  • Flexibility for Transformative Uses: The Overall Comparison Theory offers more inherent flexibility for works that significantly transform or build upon existing creative expressions. It allows a court to weigh the "new" against the "taken" in a more integrated way within the similarity assessment itself. However, this flexibility can also lead to greater uncertainty, as assessments of "fading" or "overall impression" are inherently more subjective.

This ongoing debate reflects the continuous effort within Japanese copyright law to refine the principles governing the protection of creative works while ensuring that the system does not unduly impede the creation of new works and the free exchange of ideas. The evolution of statutory copyright limitations may well influence the future trajectory of this important discussion on the meaning of "direct perception."

The interpretation of the "direct perception of essential expressive features" standard remains a central and intellectually vibrant area of Japanese copyright law. The differing perspectives of Creative Expression Monism and the Overall Comparison Theory highlight the inherent tensions in copyright: how to robustly protect an author's original contributions while simultaneously allowing sufficient breathing space for new creativity, critical engagement, and transformative works. While Japanese courts continue to apply the Esashi Oiwake standard, the precise contours of "essential expressive features" and the weight given to overall differences versus shared creative elements will continue to be shaped by judicial practice and scholarly discourse, profoundly impacting how copyright infringement is determined in Japan.