Does the Level of Creativity of a Copyrighted Work Affect the Scope of Protection Against Similar Works in Japan?

In Japanese copyright law, once a work is deemed to possess the requisite "creativity" (sōsaku-sei) to qualify for protection, a further nuanced consideration comes into play when assessing infringement: the level or degree of that creativity. It is a widely accepted principle in Japanese judicial practice and legal scholarship that the breadth of copyright protection afforded to a work is not uniform. Instead, it often operates on a sliding scale: works exhibiting a high degree of creativity tend to receive a broader scope of protection, while those with a lower degree of creativity are afforded a narrower one.

This means that a highly creative work might be protected against a wider range of similar expressions, including those that are not exact copies but capture its unique essence. Conversely, a work that barely crosses the threshold of copyrightability due to its minimal creativity might only be protected against virtually identical or extremely close reproductions. This concept is sometimes analogized to "thick" versus "thin" copyright protection.

The Rationale: Balancing Incentives and Creative Freedom

The principle of adjusting the scope of protection based on the level of creativity is not arbitrary. It is rooted in fundamental copyright policy considerations, primarily aimed at balancing the incentive for authors with the public interest in fostering a vibrant creative ecosystem. Several key rationales underpin this approach:

1. Rewarding Authorial Contribution and Intellectual Effort:
   A work that demonstrates a high level of creativity typically represents a more significant intellectual and artistic contribution by its author. It often involves a greater exercise of skill, judgment, and individual expression, perhaps by making unique choices from a wide array of possibilities (a broad "scope of selection"). Japanese courts recognize that providing stronger and broader protection for such works offers a more substantial incentive for authors to invest the effort required to produce highly distinctive and original contributions to culture. The greater the author's unique expressive input, the more deserving the work is considered of robust protection against imitations.
2. Preserving Freedom for Subsequent Creators:
   Conversely, if a work possesses only a low degree of creativity—perhaps because its expressive elements are simple, common, or heavily constrained by the subject matter (a narrow "scope of selection")—granting it a broad scope of protection could disproportionately hinder subsequent creators. It might prevent others from using similar basic elements or expressing similar fundamental ideas in ways that are almost inevitable due to the limited expressive options. This could stifle follow-on creativity and unnecessarily restrict the public domain of expressive building blocks. A narrower scope of protection for such works ensures that only very close imitations are deemed infringing, leaving ample room for others to create their own works in the same field without undue fear of liability.
3. The Overall Balance of Copyright:
   Ultimately, this variable scope of protection serves as a judicial tool to fine-tune the balance between the rights of the copyright holder and the broader public interest. It allows the copyright system to be more flexible and context-sensitive, ensuring that the powerful exclusive rights granted by copyright are commensurate with the creative contribution embodied in the work.

Assessing the "Level" of Creativity

It is important to distinguish the assessment of the level of creativity from the initial determination of whether a work possesses any creativity at all (i.e., copyrightability). A work might clear the relatively low bar for copyrightability in Japan (by exhibiting some manifestation of the author's personality) but still be categorized as having a "low level of creativity" when it comes to determining the scope of its protection.

The "level" of creativity is not primarily about artistic merit or aesthetic quality in a subjective sense. Rather, it pertains to:

• The degree of individuality and originality of the expression: How much of the author's unique personality is evident? How different is the expression from pre-existing forms or commonplace ways of expressing similar ideas?
• The "scope of selection" available to the author: If the author had many expressive choices and selected a particularly unique or complex combination, the creativity might be deemed higher. If choices were few, or if a very standard choice was made despite available alternatives, creativity might be considered lower.
• The effort and skill beyond the merely commonplace: Does the work go significantly beyond standard or trivial expressions?

For example, a simple geometric design used as a logo might be copyrightable if it shows a minimal spark of personality, but its level of creativity would likely be considered low, leading to thin protection. In contrast, a complex and highly imaginative fantasy novel with unique characters and intricate plotlines would be deemed highly creative, warranting thick protection.

Practical Implications in Infringement Analysis

This principle has direct and significant consequences for how copyright infringement is analyzed in Japan. When a court compares a plaintiff's copyrighted work with an allegedly infringing defendant's work, the assessed level of creativity of the plaintiff's work will influence the stringency of the similarity comparison:

• High-Creativity Works: If the plaintiff's work is recognized as highly creative, courts may be more inclined to find that the "essential expressive features" of the original are "directly perceivable" in the defendant's work, even if there are some discernible differences. The core, unique essence of a highly creative work might be seen as having been captured and exploited by the defendant, despite superficial alterations or additions. The defendant will have a harder time arguing that their modifications are sufficient to avoid infringement.
• Low-Creativity Works: If the plaintiff's work is deemed to have a low level of creativity, the scope of protection is narrow. For infringement to be found, the defendant's work typically must be extremely close to the protectable elements of the plaintiff's work. Often, this means near-identical reproduction of those (few) creative elements. Minor variations or the use of different, non-protected common elements by the defendant may be sufficient to escape a finding of infringement. In such cases, the court will scrutinize whether the defendant has only taken commonplace elements or ideas, or if they have indeed copied the minimal but specific creative expression of the plaintiff.

Thus, the "direct perception of essential expressive features" test—the core judicial standard for assessing similarity in Japan—is not applied in a vacuum. Its application is modulated by the perceived creative strength of the work seeking protection.

Reflections in Japanese Case Law

This principle is not merely theoretical; it is a recurring theme in Japanese court decisions across various types of works. While specific case outcomes always depend on their unique facts, a general trend can be observed:

• In cases involving works where expressive choices are inherently limited or where the expression is close to common forms—such as simple designs, factual compilations with minimal original arrangement (e.g., some aspects considered in the Chiezō case, Tokyo District Court, May 29, 1998, concerning encyclopedic dictionary entries), or certain stylized but common character designs (e.g., the Design Sho-tai "Shu" case, Osaka District Court, September 21, 1999, for calligraphic characters)—courts often require a very high degree of similarity, bordering on verbatim reproduction of the protectable elements, to find infringement.
• The Intellectual Property High Court's decision in the Fire Emblem case (November 24, 2004), involving video game elements, also reflects considerations where common game mechanics or genre tropes would likely be seen as having low creativity and thus a narrow scope of protection.
• Even for functional items with aesthetic features, such as the high chair design in the TRIPP TRAPP case (Intellectual Property High Court, April 14, 2015), the assessment of the level of creative expression separable from function plays a role in defining how similar an allegedly infringing design must be.
• Conversely, for works recognized as embodying significant artistic originality or unique and detailed expressive choices, such as complex literary narratives, highly original artworks, or distinctive musical compositions, courts are generally more willing to find infringement even when the defendant's work is not a literal copy but an adaptation or a work that borrows substantial creative expression.

This judicial practice demonstrates a consistent effort to calibrate the strength of copyright protection to the perceived creative value and distinctiveness of the work in question.

Challenges and Considerations

While the principle of a variable scope of protection based on the level of creativity offers a flexible and pragmatic approach, it also presents certain challenges:

• Subjectivity in Assessment: Determining the "level" of creativity can inevitably involve a degree of subjective judgment, despite efforts to anchor it to objective factors like the scope of selection or commonplaceness. Different judges might perceive the creative contribution of a work differently.
• Legal Certainty: For creators and users of copyrighted works, this sliding scale can sometimes introduce an element of uncertainty. It may be difficult to predict precisely how broadly a work's rights will be enforced or, conversely, how much one can legitimately draw from existing works deemed to have "low" creativity without crossing the line into infringement.
• Interrelation with Other Doctrines: The level of creativity is intrinsically linked to the identification of "essential expressive features." A work with low creativity, by definition, will have fewer or less substantial "essential expressive features" that are protectable. Thus, the narrowness of protection often stems directly from the limited nature of its protectable content.

Conclusion: Tailoring Protection to Creative Contribution

In Japanese copyright law, the level of a work's creativity is not merely a threshold question for copyrightability; it is a crucial factor that significantly influences the scope of protection granted against subsequent similar works. This nuanced approach allows the copyright system to differentiate between works of minimal individual expression and those that represent substantial creative leaps. By affording "thicker" protection to highly creative works and "thinner" protection to those with less creative input, Japanese courts aim to incentivize genuine innovation and authorship while simultaneously preserving ample space for others to build upon common themes and ideas. This dynamic balancing act reflects a sophisticated understanding of copyright's dual role in rewarding creators and promoting a rich, evolving cultural commons.