What Exactly Qualifies as a "Work" Protected by Japanese Copyright Law?
Understanding the precise scope of what constitutes a "work" (著作物 - chosakubutsu) is fundamental to navigating the Japanese copyright system. The Copyright Act of Japan (著作権法 - Chosakukenhō) provides a foundational definition, but its practical application involves a nuanced interpretation of several key elements. This article delves into that definition to clarify what types of creations are eligible for copyright protection in Japan.
The Core Definition: Article 2, Paragraph 1, Item 1
The cornerstone of copyright protection in Japan lies in Article 2, Paragraph 1, Item 1 of the Copyright Act. This provision defines a "work" as:
"a work in which thoughts or sentiments are expressed in a creative way and which falls within the literary, academic, artistic or musical domain."
(思想又は感情を創作的に表現したものであつて、文芸、学術、美術又は音楽の範囲に属するものをいう。)
To fully grasp this definition, each component must be examined individually.
1. "Thoughts or Sentiments" (思想又は感情 - Shisō mata wa Kanjō)
This initial requirement is interpreted broadly, encompassing a wide spectrum of human mental activity. It does not demand a high level of philosophical depth or emotional intensity. Rather, it signifies that the creation must originate from a human's intellectual or emotional processes.
Consequently, mere facts or raw data, devoid of any personal intellectual input, are generally not considered to embody "thoughts or sentiments" for copyright purposes. For instance, the height of Mount Fuji (3776 meters), or the historical date of an event like the attack on Pearl Harbor (December 8, 1941), are facts and, as such, are not copyrightable in themselves. Similarly, a list of maximum and minimum temperatures is mere data. It's important to note that "fact" here does not necessarily mean "truth," but rather refers to phenomena not imbued with the author's thoughts or feelings.
This principle also excludes creations not stemming from human consciousness. For example, scribbles made by a person while asleep, or a painting created by a chimpanzee, would lack the requisite "thoughts or sentiments" to qualify for copyright protection. However, the threshold for human expression can be quite low. Even a simple drawing by a young child, such as a picture of their mother with arms and legs extending directly from the face, can be recognized as an expression of their thoughts or feelings and thus potentially copyrightable, even if no one asserts such a claim unless, for example, the child later becomes a famous artist and the early work gains financial value.
The term "thoughts or sentiments" is generally broad enough that the focus of copyrightability analysis often shifts to other elements of the definition, such as whether there's a "creative expression." Even if the subject matter itself isn't a "thought or sentiment" (e.g., a machine, which is a physical object), the process of expressing it—like creating a technical drawing—can involve the infusion of the creator's thoughts or feelings, potentially making the drawing a copyrightable work. If, however, a drawing merely reflects technical accuracy and would be identical regardless of who drew it, it would lack the expression of "thoughts or sentiments".
An interesting point arises with technical ideas (技術的思想 - gijutsuteki shisō). The Copyright Act's definition of "thoughts" does not explicitly exclude technical ideas. A patent specification, which describes a technical invention, is itself considered a copyrightable work as a literary piece, as its writing style and structure will vary between authors even when describing the same invention. Whether the embodiment of a technical idea (e.g., a newly designed screw that is easier to use) can be a copyrighted "work" is a more complex question, often resolved by considering whether it falls into the "literary, academic, artistic or musical domain". Similarly, an industrial design, defined as a creation of a shape, etc., of an article that evokes an aesthetic impression and can be used in industry, could be seen as a creative expression of thoughts or feelings related to beauty. The denial of copyright for such items often comes from the "domain" requirement, which channels them towards patent or design law.
2. "Expressed in a Creative Way" (創作的に表現したもの - Sōsaku-teki ni Hyōgen Shita Mono)
This is arguably the most crucial part of the definition.
"Creativity" (創作性 - sōsaku-sei) in Japanese copyright law does not equate to the standards of novelty or inventive step found in patent law. It doesn't require the work to be groundbreaking or highly original. Instead, the threshold for creativity is relatively low: the author's individuality or personality must be expressed in some form in the work. A mere imitation of pre-existing works would not suffice.
The Tokyo District Court decision in the Last Message in Saishūgō case (December 18, 1995) held that commonplace expressions that would likely be phrased identically by anyone lack creativity and are not copyrightable works. However, the application of this principle can be subtle. For example, distinguishing between a farewell message in a magazine's final issue that exhibits individuality and one that is deemed generic can be challenging, as both might convey similar core elements.
For works possessing a low level of creativity—sometimes referred to as "thin copyright" (薄い著作物) —the scope of protection is typically narrow. Such works might only be protected against verbatim copying (a "dead copy"), while more transformative uses might not constitute infringement. This approach aligns with the "merger doctrine" (マージ理論), where if an idea can only be expressed in a very limited number of ways, the expression "merges" with the idea, and copyright protection becomes thin or non-existent, except perhaps against exact duplication. The Tokyo District Court in the Commuting University Law Course case (May 17, 2005) adopted such an approach, carefully delineating which parts of a work were infringed based on their level of creativity.
Even if individual components of a work lack creativity, their selection and arrangement can be creative, leading to protection for a compilation work (編集著作物 - henshū chosakubutsu). The Tokyo High Court in the Hotel Junkies case (October 29, 2002) found that individual posts on an internet bulletin board could be copyrighted if, taken as a whole, they expressed the author's individuality. This contrasts with cases where courts have denied creativity to seemingly more substantial texts if the expressions used were deemed commonplace.
The concept of "scope for selection" (選択の幅 - sentaku no haba) is also relevant to assessing creativity. Traditionally, this refers to whether the creator had alternative ways to express themselves. Some contemporary theories, however, propose considering the "scope for selection" from the perspective of competitors in the market: if competitors have alternative means of expression, the original expression may be protected; if not, it may be considered an unprotectable idea. This introduces a competitive law perspective into copyright analysis but is often seen as needing to be balanced with the traditional "author's individuality" criterion.
"Expressed" (表現したもの - hyōgen shita mono)
Copyright protects the expression of thoughts or sentiments, not the underlying ideas, facts, systems, or emotions themselves. This is the well-known idea-expression dichotomy. For example, while a patent protects a technical idea (which can be embodied in many ways), copyright protects only the specific way a program or a literary work is expressed. The aim is to allow free use of ideas, thereby fostering diverse expressions and cultural development.
Fixation in a tangible medium is not a general requirement for copyright protection in Japan, with the notable exception of cinematographic works. However, the thoughts or sentiments must be externalized in some form, such as words, music, or images. An improvised (ad-lib) musical performance, for instance, can be a copyrighted work at the moment of its expression, even if it is not recorded. The practical challenge in such cases is later proving the content of the work if it wasn't fixed. For certain types of works, such as artistic works (paintings, sculptures) and photographs, an initial embodiment in a tangible form is generally considered a prerequisite for copyright to arise. Architectural works, while not requiring full construction, typically need at least a design plan.
An artist's distinctive style (e.g., Van Gogh's brushwork or compositional tendencies) is considered part of the unprotectable idea or method, not the expression itself. Thus, creating a new painting in Van Gogh's style, using subjects he never painted, would not infringe his copyright (assuming the copyright hadn't expired). Even if one used a similar composition to Van Gogh but did not copy his specific painting, it would not be an infringement as long as it wasn't based on his completed work.
The distinction between an unprotectable idea and a protectable expression can be challenging, particularly with adaptations. For example, when a novel is adapted into a film, the linguistic expression is transformed into a completely different visual and auditory form. Japanese copyright law extends protection to such adaptations, but determining how far beyond the concrete original expression this protection reaches is difficult.
Traditionally, Japanese copyright theory distinguished between "external expressive form" (外面的表現形式 - gaimenteki hyōgen keishiki), which is the objective outward structure making the author's thoughts perceivable, and "internal expressive form" (内面的表現形式 - naimenteki hyōgen keishiki), the system of thoughts formed with a certain order in the author's mind. Copyright was said to protect both. Reproduction involved maintaining the external expressive form, while adaptation involved maintaining the internal expressive form while changing the external one. More recently, courts often focus on whether "the essential features of the expression" in the original work can be "directly perceived" in the allegedly infringing work when determining adaptation infringement.
3. "Which Falls Within the Literary, Academic, Artistic or Musical Domain" (文芸、学術、美術又は音楽の範囲に属するもの - Bungei, Gakujutsu, Bijutsu mata wa Ongaku no Hani ni Zokusuru Mono)
This clause specifies the general fields to which a copyrightable work must belong. The terms "literary, academic, artistic, or musical" are interpreted broadly to cover a wide range of intellectual and cultural activities. The specific categorization is often less important than the overall nature of the creation as an intellectual or cultural product. For instance, computer programs, after some debate, were recognized as falling within this scope due to the intellectual and cultural nature of their creation process.
Crucially, this "domain" requirement helps distinguish copyrightable works from creations primarily governed by other intellectual property regimes, such as patents or industrial designs. "Practical articles" (実用品 - jitsuyōhin), or items designed for utilitarian purposes, are generally considered outside the scope of copyright protection, even if they embody creative thought and expression. An industrial design, for example, might be a highly creative expression of an aesthetic idea, but its primary purpose is industrial application, thus falling under design law rather than copyright law. Similarly, a patented invention, while an embodiment of a creative technical idea, is protected by patent law. The PDF commentary suggests that this "domain" clause is the primary basis for excluding such industrial creations from copyright, rather than the "thoughts or sentiments" or "creative expression" elements alone.
The Tokyo District Court in the Pentakun case (March 27, 1989) illustrated this. The case involved an educational toy ("Pentakun") that had a utility model registration. The court found that the toy's functional aspects, stemming from its shape and structure, were technical ideas, not copyrightable expression. However, it also noted that the toy's appearance—such as animal and maze drawings on its pentagonal blocks—could potentially be seen as copyrightable expression. This highlights that even a practical article might incorporate copyrightable artistic elements if those elements are separable from its utilitarian function and fall within the artistic domain.
The Broader Context: Article 10 and Article 13
While Article 2(1)(1) provides the core definition, other articles offer context. Article 10 of the Copyright Act lists examples of works, such as novels, musical compositions, paintings, cinematographic works, and computer programs. This list is illustrative, not exhaustive; any creation meeting the Article 2(1)(1) definition can be a work, regardless of whether it fits neatly into an Article 10 category. The categorization under Article 10 mainly becomes relevant when specific rules apply to certain types of works (e.g., special provisions for cinematographic works regarding authorship or the right of distribution).
Furthermore, Article 13 of the Copyright Act stipulates that certain types of works, even if they meet the general definition of a work, are not subject to copyright. These include laws, regulations, notifications, court judgments, and official translations thereof. The rationale is that these materials need to be widely disseminated and freely used by the public.
Conclusion
The definition of a "work" under Japanese copyright law is a multifaceted concept. It requires an expression of human thoughts or sentiments, a degree of creativity reflecting the author's individuality (though not necessarily novelty), and belonging to the broad domains of literature, academia, art, or music. While seemingly straightforward, each element involves careful legal interpretation, balancing the protection of creators with the public's interest in accessing and building upon existing knowledge and culture. Understanding these nuances is crucial for anyone dealing with creative content in Japan.