Database Copyright in Japan: More Than Just Facts?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

In the information age, databases are invaluable assets, powering everything from search engines and e-commerce platforms to scientific research and business intelligence. The sheer volume of data, coupled with the effort and investment required to compile and organize it, makes its protection a critical concern. But how does Japanese copyright law (著作権法 - Chosakuken-hō) approach the protection of databases? Does it safeguard the raw data, the structure, or both? And how does this compare to frameworks in other major jurisdictions like the U.S. and the EU?

Defining "Database Works" in Japan

Japanese copyright law specifically addresses databases. Article 2, Paragraph 1, Item (x)-iii defines a "database" as "a collection of information such as theses, numerical data, figures and other information, which is systematically structured so that such information can be searched by means of a computer."

For such a database to be protected as a copyrighted work—a "database work" (データベースの著作物 - dētabēsu no chosakubutsu)—Article 12-2, Paragraph 1 sets a crucial condition: the database must "possess creativity in the selection or systematic construction of its information."

This positions database works as a specific type of compilation work (編集著作物 - henshū chosakubutsu). While general compilations are covered by Article 12 (which also requires creativity in selection or arrangement), Article 12-2 provides this dedicated framework for computer-searchable databases. The underlying principles of protection, however, are quite similar: copyright does not protect the individual pieces of information within the database (unless they are independently copyrighted works), but rather the original and creative way in which those pieces of information are selected or arranged to form the database as a whole.

The Cornerstone of Protection: Creativity in Selection or Arrangement

The defining factor for database copyright in Japan is creativity. This creativity must manifest in either:

  1. The Selection of Information:
    This refers to the intellectual effort and judgment involved in choosing which data to include in or exclude from the database. Merely collecting all available information on a topic, or applying standard, obvious criteria for inclusion, would likely not be considered creative. Creative selection implies a degree of originality in the thought process behind defining the scope and contents of the database. For example, a database of "the most influential haikus of the Meiji era," where the criteria for "influential" involve significant scholarly judgment and subjective choice, might demonstrate creative selection. In contrast, a comprehensive directory of all registered businesses in a city, based solely on official registration lists, might lack creative selection.
  2. The Systematic Construction (Arrangement) of Information:
    This pertains to the originality in how the selected information is organized, classified, structured, or interrelated within the database to facilitate searching and use. A simple alphabetical, numerical, or chronological ordering, if it's a standard or purely functional method for that type of data, would generally not be considered a creative systematic construction. There must be some originality in the schema, the indexing methodology, or the way data points are linked that reflects intellectual creation beyond the merely mechanical or utilitarian.

The "No Sweat of the Brow" Doctrine in Japan

Crucially, Japanese copyright law, much like U.S. copyright law following the Feist decision, does not grant copyright protection based on the "sweat of the brow" or the sheer effort and investment involved in compiling the data. The economic value of a database or the labor invested in its creation does not, by itself, confer copyright protection on the database as a whole if it lacks creativity in its selection or arrangement.

A significant Japanese court case illustrating this is the Super Frontman case (Tokyo District Court, May 25, 2001). This case involved a comprehensive database system for vehicle maintenance information used by auto repair businesses. The database was extensive, and its creation and maintenance involved substantial financial investment (over JPY 500 million for development and JPY 4 million annually for upkeep). However, the court denied copyright protection for the database structure itself, finding a lack of creativity in its selection (it aimed to be comprehensive) and arrangement (data was ordered by standard vehicle type and model codes). Despite denying copyright, the court did find the defendant liable under tort law (specifically, unfair competition principles) for the large-scale unauthorized reproduction and commercialization of the database contents, recognizing the plaintiff's significant investment and the defendant's parasitic conduct. This highlights that while copyright might not protect non-creative databases, other legal avenues might offer recourse against certain forms of misappropriation.

Similarly, a Tokyo District Court decision on September 30, 2014, concerning a Template Database for company member information, denied copyrightability due to a lack of creativity in selection or arrangement, as it was a comprehensive collection organized in a standard manner.

If a database does qualify as a copyrighted work due to creative selection or arrangement, the copyright protects:

  • The creative structure: The original way the information has been selected and/or systematically arranged. This includes the overall schema, the specific classification system (if creative), and the unique organizational logic.

However, database copyright in Japan does not protect:

  • The individual data elements themselves: Unless an individual piece of information within the database (e.g., a specific article, photograph, or data entry that is itself an original work) is independently copyrightable, the facts or raw data are not protected by the copyright in the database structure. Article 12-2, Paragraph 2 clarifies this: "The provisions of the preceding paragraph shall not affect the rights of the author of a work which forms a component part of a database work."
  • Underlying ideas or systems in the abstract: The general idea of creating a database on a particular topic, or the abstract classification system itself, is not protected.
  • The software used to create, manage, or search the database: The database management system (DBMS) or search algorithms are typically protected separately as computer program works, if they meet the criteria for program copyright.

Infringement of a copyrighted database occurs when a party reproduces or otherwise exploits the creative selection or systematic arrangement of that database without authorization.

  • Copying the Structure: If a defendant copies the unique structure, including the specific criteria for selection (if creative) and the original way the data is organized and presented, this would likely be an infringement of the database copyright.
  • Extracting Data vs. Copying Structure: Merely extracting a substantial amount of data from a copyrighted database and then using that data in a completely different, independently created structure might not infringe the database copyright itself (though it could be problematic for other reasons, such as infringement of copyright in the individual data elements if they are protected, breach of contract if access was subject to terms of use, or unfair competition). The protection for a database work is tied to its creative compilation, not to the raw facts or data it contains.

Some legal commentaries note that if data is extracted from a copyrighted database and then significantly rearranged or re-selected according to new, original criteria, the resulting compilation would likely be outside the scope of the original database's copyright.

Computer Searchability Requirement

For a compilation of information to be considered a "database" under the specific definition in Article 2(1)(x-iii) (and thus potentially a "database work" under Article 12-2), it must be "systematically structured so that such information can be searched by means of a computer." If a collection of information is not computer-searchable in this manner, it would not qualify as a "database" for the purposes of Article 12-2. However, it might still qualify for protection as a general "compilation work" under Article 12 if it exhibits creativity in selection or arrangement, even if not computer-searchable. Court cases like the Bunkyokan case (Tokyo District Court, January 28, 2004) and the Subtitle Production Software case (IP High Court, March 23, 2016) have touched upon the implications of a work not meeting the "computer searchable" criterion for database status.

Challenges and Practical Strategies

Protecting databases under Japanese copyright law presents certain challenges:

  • Meeting the Creativity Threshold: For many practical, comprehensive databases that are organized according to industry standards or functional necessity, proving the requisite "creativity" in selection or arrangement can be difficult.
  • Protecting Raw Data Value: Copyright law does not directly protect the economic value inherent in large collections of raw, uncreative data if the compilation structure itself lacks originality.

Practical strategies for database creators in Japan include:

  1. Focusing on Demonstrable Creativity: When designing a database, consciously try to incorporate and document original elements in the selection criteria (why certain data is included/excluded beyond mere comprehensiveness) and in the systematic arrangement (e.g., through a unique classification scheme, novel ways of interrelating data, or an original presentation that aids searchability and understanding).
  2. Contractual Protections: Utilize robust license agreements, terms of service, and access controls to manage how users can access and utilize the database and its contents. These contracts can impose restrictions beyond what copyright law itself provides.
  3. Technological Protection Measures: Implement technical safeguards to prevent unauthorized mass extraction or scraping of data.
  4. Exploring Unfair Competition Law: In cases of egregious misappropriation of valuable data, even if copyright protection is weak or absent for the database structure, remedies under Japan's Unfair Competition Prevention Act might be available, as seen in the Super Frontman case, particularly if the defendant's actions involve free-riding on substantial investment or constitute a misuse of trade secrets.

A Comparative Glance: U.S. and EU Approaches

Understanding Japan's stance is aided by comparing it with other major jurisdictions:

  • United States: The U.S. Supreme Court's decision in Feist Publications, Inc. v. Rural Telephone Service Co. (1991) firmly established that copyright protection for compilations (including databases) requires originality in the selection, coordination, or arrangement of the contents. "Sweat of the brow" or mere effort is not sufficient. This aligns closely with the Japanese requirement for creativity in selection or systematic construction.
  • European Union: The EU's Database Directive (96/9/EC) offers a two-tiered approach:
    1. Copyright Protection: Databases that, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" are protected by copyright. This is similar to the Japanese and U.S. standard.
    2. Sui Generis Database Right: More significantly, the EU Directive introduced a sui generis (of its own kind) database right. This right protects database makers who have made a "qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents" against the unauthorized extraction or re-utilization of the whole or a substantial part of the contents of that database. This protection lasts for 15 years and does not require creativity in the database structure; it protects the investment in the data itself.

Crucially, Japanese copyright law does not currently have a direct equivalent to the EU's sui generis database right. While unfair competition law might provide some relief against blatant misappropriation of data, it does not offer the same systematic protection for investment in database contents that the EU sui generis right provides. This is a key difference for businesses that rely heavily on the value of their data compilations.

Conclusion

Japanese copyright law provides protection for databases, but this protection is contingent upon demonstrating creativity in the selection or systematic construction of the information they contain. Mere effort, investment, or comprehensiveness is not enough to secure copyright for the database as a whole. While the individual data elements might have their own copyright if they are original works, the database structure itself must exhibit originality. This approach aligns with the U.S. standard but differs significantly from the EU's dual system, which includes a sui generis right protecting substantial investment in database contents regardless of structural creativity. For businesses creating or utilizing databases in Japan, understanding this "creativity in structure" requirement is paramount, as is considering contractual and other legal mechanisms to protect the value inherent in their data collections.