How are Compilations and Databases Protected by Copyright in Japan?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

In an information-driven world, the ability to collect, organize, and present data and pre-existing materials is immensely valuable. Japanese copyright law recognizes this by offering protection not only to original individual works but also to certain types of collections, specifically "compilation works" (編集著作物 - henshū chosakubutsu) and "database works" (データベースの著作物 - dētabēsu no chosakubutsu). Understanding how these are protected is crucial for anyone involved in creating or using such collections.

Compilation Works (編集著作物 - Henshū Chosakubutsu): Creativity in Selection or Arrangement

Article 12 of the Japanese Copyright Act provides for the protection of compilation works. A compilation work is defined as one that, "by reason of the selection or arrangement of its contents, constitutes an intellectual creation."

The cornerstone of copyright in a compilation lies not in the individual materials it contains—which may or may not be independently copyrightable—but rather in the creativity demonstrated in either the selection or the arrangement of those materials. This creativity must reflect the compiler's individuality and be more than a merely mechanical or commonplace gathering.

What Constitutes "Creativity" in Compilations?

The level of creativity required for a compilation is generally the same as for other types of works: it needs to be an expression of the author's personality or individuality, not necessarily meeting a high standard of novelty or artistic merit.

  • Selection: Even if the arrangement is standard (e.g., alphabetical or chronological), the act of choosing which materials to include can be sufficiently creative. For instance, the Tokyo District Court, in the Dowasure Kanji Jiten (Forgotten Kanji Dictionary) case (April 17, 1985), found that a dictionary of frequently forgotten kanji, where the creativity lay primarily in the selection of which kanji to include (even if arranged phonetically), could be a protected compilation. The court noted that the defendant had copied the plaintiff's selection wholesale, including intentionally placed errors.
  • Arrangement: Conversely, even if the materials themselves are commonplace or dictated by external factors, the way they are arranged can demonstrate creativity.
  • Both Selection and Arrangement: Often, creativity will be found in a combination of both the selection and the arrangement of the contents.

However, not all selections or arrangements will qualify. The Tokyo District Court, in the Matsumoto Seichō Sakuhin Eizōka List (List of Filmed Works by Seichō Matsumoto) case (February 25, 1999), denied copyright protection to a list that organized an author's filmed works under various headings, finding the selection of works (all filmed works) and the method of arrangement (by item/category) to be unoriginal and lacking creativity. This case underscores the principle that the "sweat of the brow"—the effort and labor involved in gathering materials—is not, in itself, protected by copyright.

It's also conceived that even a seemingly simple compilation like a class graduation essay collection, where essays are arranged alphabetically by student name, might possess copyrightable creativity if other elements such as the cover design, table of contents, or a teacher's afterword involve creative choices in their selection or arrangement within the overall publication.

Nature of Compiled Materials

The individual items or "materials" (素材 - sozai) within a compilation do not need to be independently copyrightable works. They can consist of:

  • Facts or data (e.g., names, addresses, telephone numbers).
  • Non-copyrightable items.
  • Other copyrighted works (e.g., an anthology of poems, a collection of photographs).

For example, a telephone directory organized by profession, such as the one in the NTT Town Page case (Tokyo District Court, March 17, 2000), can qualify as a compilation work based on the creative selection and arrangement of professional categories, even though the individual listings are mere data.

If copyrighted works are used as materials in a compilation, the compiler generally needs permission from the copyright holders of those individual works for their use. However, the copyright in the compilation itself (based on the creative selection/arrangement) can arise independently of these permissions, although enforcing the compilation copyright might be complicated if the underlying rights are not cleared. The rights in the underlying materials are not affected by their inclusion in a compilation (Article 12, Paragraph 2).

Scope of Protection and Infringement

Copyright in a compilation work protects only the creative selection or arrangement of its contents, not the individual materials themselves (unless those materials are independently copyrighted by the compiler).

Infringement of a compilation copyright occurs when a third party copies the compiler's creative selection or arrangement to such an extent that the essential expressive features of that selection/arrangement are directly perceptible in the infringing work. Merely extracting a few individual items from a compilation and using them in a different context or arrangement generally does not infringe the compilation copyright (though it might infringe the copyright in the individual items if they are protected). The Tokyo District Court in the Keijō Misaka Shōgakkō Kinen Bunshū (Keijō Misaka Elementary School Commemorative Essay Collection) case (July 1, 2005) held that taking only some individual essays from a compiled essay collection for quotation did not constitute use of the compilation work itself, and thus did not infringe the compilation's copyright.

The "idea" or "method" of compilation is also not protected, only the specific expression of that idea through a particular selection or arrangement. For instance, using a similar thematic structure to compile a catalog of different products would not infringe the copyright in an earlier catalog that used that structure for other products, as seen in the Sankō Shōji product catalog case (Osaka District Court, March 28, 1995).

Database Works (データベースの著作物 - Dētabēsu no Chosakubutsu): Creativity in Selection or Systematic Organization

Article 12-2 of the Copyright Act specifically addresses database works. A "database" is defined in Article 2, Paragraph 1, Item 10-3 as "a collection of information such as theses, numerical data, figures or other forms of information, which is systematically organized so that such information can be searched by use of a computer."

Databases are considered a type of compilation work but have distinct characteristics and requirements for protection. The key element for copyrightability of a database is creativity in the "selection of information" or its "systematic organization" (情報の選択又は体系的な構成の創作性 - jōhō no sentaku mata wa taikei-teki na kōsei no sōsaku-sei).

Unlike general compilations where "arrangement" is a focus, for databases, the emphasis is on the "systematic organization"—the structure that allows for searching and retrieval (e.g., the choice of keywords, search fields, indexing methods, the overall architecture facilitating access). The way data is physically stored might not be creative, but the intellectual effort in designing the system for accessing it can be.

The copyright holder is typically the person or entity that creatively contributed to either the selection of information or its systematic organization, or both. If one uses standard, off-the-shelf database software, the creativity would likely reside in the user's selection and input of information into that pre-existing structure.

Challenges in Assessing Database Creativity

Determining creativity for databases presents unique challenges:

  • Comprehensiveness vs. Selection: Databases are often valued for their comprehensiveness (e.g., including all relevant judicial precedents). This can diminish the appearance of "creative selection."
  • Efficiency vs. Originality of Organization: Users often prefer databases with intuitive, common, or highly efficient search structures. Highly original or idiosyncratic organization might be less useful and thus less common, making it harder to demonstrate creativity in the "systematic organization" if a standard structure is employed.

These factors can sometimes lead to situations where a database, despite involving considerable effort and investment, may struggle to meet the threshold for copyrightable creativity. The Tokyo District Court's interim judgment in the Tsubasa System case (May 25, 2001) denied copyright creativity in a database of items needed for automobile inspection certificates, primarily due to a perceived lack of creativity in selection and organization, although it acknowledged the significant labor involved and did find infringement under general tort law principles due to the defendant's wholesale copying.

This highlights the "sweat of the brow" dilemma: Japanese copyright law, like that of many countries, does not protect mere effort or investment if it doesn't result in creative expression. While some jurisdictions like the EU have introduced sui generis database rights to protect substantial investment, Japan primarily relies on the copyright framework.

Legal commentators often argue for a relatively low threshold for database creativity, pointing out that even in "comprehensive" databases, some level of selection (e.g., defining the scope, sources) is almost always present. Similarly, unless a database's structure is entirely dictated by external constraints or is utterly commonplace, there's often room for some creative input in its systematic organization, such as the design of search parameters or metadata fields. The IP High Court decision in the Tabi Nes Pro case (January 19, 2016), which recognized copyright in a database of accommodation and other travel-related information and awarded significant damages for its infringement, may signal a willingness to find creativity in commercially valuable databases.

Scope of Protection and Infringement of Database Works

Similar to general compilation works, copyright in a database protects only the creative selection or systematic organization of the information, not the individual pieces of data themselves (unless, again, those data elements are independently copyrighted).

Infringement occurs when a substantial part of the database's creative structure or selection is copied, such that its essential expressive features in these aspects are directly perceptible in the infringing product. Extracting a small number of individual records or data points, particularly through the intended search functionality of the database, would typically not infringe the database copyright itself. The utility of a database often lies in the ability to freely use the discrete pieces of information retrieved from it.

The unauthorized reproduction or public transmission of a significant portion of the database, which replicates its creative selection or systematic structure, would constitute infringement. The NTT Town Page case, for example, while concerning a printed directory, suggests by analogy that if the systematic classification (e.g., professional categories) is creative, replicating that system, even if for data in a different geographical region, could be problematic.

While individual, non-creative data elements are not protected by copyright, and "sweat of the brow" in collecting data is also outside copyright's ambit, it's worth noting a separate development. The Japanese Unfair Competition Prevention Act was amended in 2018 to offer a degree of protection for "limitedly provided data" (いわゆるビッグデータ - so-called "big data") that is managed with access controls (like IDs and passwords) against acts of wrongful acquisition, use, or disclosure (Article 2, Paragraph 1, Items 11-16). This provides a non-copyright avenue for protecting valuable data compilations that may not meet the creativity threshold for copyright.

Conclusion

Japanese copyright law offers distinct but related avenues for protecting compilations and databases. For both, the key to protection lies not in the raw materials or data itself, nor in the labor of collection, but in the creative expression manifested in the selection, arrangement, or systematic organization of those contents. While the threshold for creativity is not exceptionally high, it must demonstrate the author's individuality. The scope of protection is limited to these creative elements, meaning that the underlying ideas, facts, or individual data entries (if not independently copyrighted) remain free for others to use. As information continues to be a vital asset, understanding these principles of compilation and database copyright is essential for creators, publishers, and users of such collections in Japan.