How is "Creativity" (Sōsaku-sei) Assessed for Copyright Protection in Japan, and What is the "Scope of Selection" (Sentaku-no-haba) Theory?

For a work to be eligible for copyright protection in Japan, it must embody "creativity" (創作性 - sōsaku-sei). This requirement is enshrined in Article 2, Paragraph 1, Item 1 of the Japanese Copyright Act, which defines a "work" (chosakubutsu) as "a production in which thoughts or sentiments are expressed in a creative way...". While the term "creativity" might evoke notions of high artistic merit or groundbreaking novelty, the standard in Japanese copyright law is distinct and has its own nuanced interpretation, significantly influenced by the "scope of selection" (選択の幅 - sentaku-no-haba) theory.

The Japanese Standard: A Manifestation of Personality

The threshold for creativity in Japanese copyright law is generally understood to be relatively low compared to the requirements for other intellectual property rights like patents. It does not demand objective novelty (that the work is the first of its kind) or a high degree of originality in the sense of being strikingly different from all pre-existing works[cite: 28]. Instead, the core requirement is that the work expresses the author's personality or individuality in some discernible way[cite: 28]. If some aspect of the author's unique character or way of seeing things is reflected in the expression, creativity is generally found. This means that even works that might seem simple or derivative at first glance can qualify for copyright protection, provided they are not mere copies and exhibit some personal touch of the author.

When is "Creativity" Deemed Absent?

Conversely, certain types of productions are typically considered to lack the requisite creativity for copyright protection in Japan:

1. Mere Copies or Mechanical Reproductions: A slavish copy of another's work, or a purely mechanical reproduction without any authorial input, naturally lacks the personality of the copier and thus is not a creative work attributable to them.
2. Facts, Data, and Ideas: As discussed in the context of the idea-expression dichotomy, raw facts, historical data, scientific laws, or abstract ideas, however valuable or laboriously compiled, are not considered creative expressions in themselves. Their discovery or compilation might involve effort, but the facts or ideas themselves do not originate from an author's creative expression of personality.
3. Expressions Devoid of Intellectual Activity (知的活動を欠くもの): Japanese jurisprudence tends to deny creativity to productions that, despite involving significant physical labor or economic investment, lack a core intellectual or creative contribution from a human author. For example, simply tracing an existing lengthy novel or meticulously recording daily temperature readings without any creative selection or arrangement might fall into this category[cite: 28]. The "sweat of the brow" alone does not confer copyright.
4. "Commonplace Expressions" (ありふれた表現 - arifureta hyōgen): This is a crucial category. Expressions that are ordinary, trivial, stock phrases, or so standard for a given topic or genre that anyone creating a similar work would likely or inevitably use them are deemed "commonplace" and lack the author's specific individuality[cite: 28].
   • For example, a brief, standard factual death announcement of around 100 characters, conveying essential information like the deceased's name, date, and cause of death, is likely to be very similar regardless of who writes it. Such an expression would typically be considered commonplace[cite: 28].
   • This principle is also reflected in Article 10, Paragraph 2 of the Copyright Act, which states that "miscellaneous reports and news of the day that are merely factual communications" are not considered copyrightable works[cite: 28]. These are seen as lacking the necessary creative expression of personality.
5. Expressions Strictly Dictated by Function: If the way something is expressed is entirely dictated by its technical function or a specific, unalterable rule, leaving no room for authorial choice, then that expression may lack creativity.

The "Scope of Selection" (Sentaku-no-haba) Theory

In recent decades, a prominent and influential framework for assessing creativity in Japanese copyright law has been the "scope of selection" (or "range of choice") theory[cite: 28, 29]. This theory provides a practical lens through which to evaluate whether an author's personality has been sufficiently expressed.

The core idea is that when an author sets out to express a particular idea, theme, or piece of information, the breadth of available expressive options influences the potential for creativity[cite: 28, 29]:

• Narrow Scope of Selection: If there are very few ways to express a given idea, or if the expression is heavily constrained by external factors (e.g., technical standards, limited space, the nature of the information itself), it becomes difficult for an author to imbue the work with their unique personality. Any resulting expression is likely to be similar to what others would produce. In such cases, creativity is less likely to be found, or if found, the scope of protection will be very thin[cite: 28, 29]. The earlier example of a 100-character death announcement fits here; the constraints limit expressive choice.
• Wide Scope of Selection: Conversely, if an author has a broad range of choices in how to express an idea—many different words, stylistic approaches, compositional elements, etc.—there is ample opportunity for their personality, style, and individuality to shine through. The act of choosing a specific path from many available alternatives is itself seen as a manifestation of that individuality. In such scenarios, creativity is more readily acknowledged, and the resulting work is likely to receive a broader scope of protection[cite: 28, 29]. For instance, writing a 100,000-character biography of a historical figure offers a vast scope for selection in terms of narrative structure, emphasis, language, and interpretation.

Justifications for the "Scope of Selection" Theory:

This theory is often justified from two perspectives:

1. The Author's Creative Act: From the author's viewpoint, when faced with a wide array of expressive possibilities, the very act of selecting and arranging specific elements to form the final work is an intellectual and creative endeavor that reflects their personal judgment, skill, and aesthetic sensibilities[cite: 31]. The wider the range of choices, the more significant this selective act becomes as an indicator of personality.
2. Balancing with Public Interest and Freedom of Expression: From the public's perspective, granting copyright protection to an expression chosen from a very narrow scope of alternatives could unduly restrict others from expressing the same underlying idea, as they would have few, if any, non-infringing ways to do so. This would stifle rather than promote cultural development. However, if the scope of selection was wide, protecting one particular expression still leaves many other avenues open for subsequent creators, thereby imposing a lesser burden on overall freedom of expression and creativity[cite: 29].

An Important Nuance:

It's crucial to note that even if a wide scope of selection exists, an author might still choose an expression that is, in itself, commonplace or a standard trope (a "mainstream" or 王道 - ōdō expression). In such cases, while the opportunity for creative expression was present, the chosen expression might still be denied creativity on the grounds of being a commonplace element[cite: 30]. The "scope of selection" helps determine if individuality could have been expressed, but the actual expression chosen must still be assessed.

Interplay with "Commonplace Expressions"

The "scope of selection" theory and the concept of "commonplace expressions" are closely intertwined. If the available choices for expressing an idea are inherently limited, the resulting expression will almost inevitably be commonplace. For example, a simple geometric shape used for a functional symbol might offer a very narrow scope of selection, and the resulting design would likely be seen as commonplace.

However, as noted above, the reverse is not always true. A broad scope of selection does not automatically guarantee that the chosen expression is creative. An author might, for various reasons, opt for a well-worn phrase or a standard depiction even when many other alternatives were available. In such instances, the specific chosen expression itself would be examined for its commonplaceness, irrespective of the wider initial possibilities.

A Brief Comparison with U.S. "Originality"

The Japanese concept of sōsaku-sei (creativity) presents some contrasts with the U.S. standard of "originality." In U.S. copyright law, as famously articulated in Feist Publications, Inc. v. Rural Telephone Service Co. (1991), originality requires two elements: independent creation by the author and a "modicum of creativity." The "modicum of creativity" standard is also generally considered to be low, meaning that the work needs to possess at least some minimal degree of creative spark.

While both Japanese and U.S. systems aim to exclude mere slavish copying, purely functional elements, and de minimis contributions, the doctrinal emphasis differs. The Japanese focus on the "manifestation of the author's personality" provides a slightly different qualitative lens. The "scope of selection" theory offers a structured way to reason about whether such a manifestation was possible and achieved. While the practical outcomes in many cases might be similar, the underlying analytical pathways and legal vocabulary have distinct characteristics.

Ongoing Refinements and Scholarly Discourse

The "scope of selection" theory, while widely influential, continues to be a subject of academic discussion and refinement in Japan. For instance, scholars debate whether the "scope" should be viewed primarily from the perspective of the author's creative process (the "creative-legal scope of selection theory" - 創作法的選択の幅論) or from the perspective of its impact on competition and other creators (the "competition-legal scope of selection theory" - 競争法的選択の幅論, a view notably associated with Professor Nobuhiro Nakayama, which considers whether protecting the expression would unduly limit options for competitors)[cite: 29, 30]. Such discussions reflect the ongoing efforts to refine the application of creativity standards in an evolving creative landscape.

Conclusion

The assessment of "creativity" (sōsaku-sei) is a foundational step in determining copyright protection in Japan. Far from requiring extraordinary novelty or artistic genius, the standard centers on whether the author's personality or individuality is expressed in the work. The "scope of selection" theory provides a valuable analytical tool for courts and practitioners to gauge this, by considering the range of expressive choices available to the author. This approach seeks to strike a crucial balance: rewarding and protecting genuine authorial contributions while ensuring that fundamental expressive building blocks, common ideas, and commonplace expressions remain freely available for all, thereby fostering a rich and dynamic environment for cultural and creative advancement.