What Qualifies as a "Work" Under Japanese Copyright Law, and How Does It Differ from U.S. Standards?

Understanding what constitutes a "work" eligible for copyright protection is fundamental in any jurisdiction. In Japan, the Copyright Act (著作権法 - Chosakken-hō) provides a specific definition that, while sharing common international principles like the idea-expression dichotomy, possesses unique nuances, particularly concerning creativity and the scope of protected subject matter. This article explores the core elements of a copyrightable "work" under Japanese law and offers comparative insights, particularly with U.S. copyright standards.

The Four Pillars of a "Work" in Japan: Article 2, Paragraph 1, Item 1

The cornerstone for defining a "work" (chosakubutsu) in Japan is Article 2, Paragraph 1, Item 1 of the Copyright Act. It states that a work is a "production 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って、文芸、学術、美術又は音楽の範囲に属するものをいう). Let's break down these four essential components.

1. The Spark of Humanity: "Thoughts or Sentiments" (思想又は感情 - shisō mata wa kanjō)

The first requirement is that the production must be an expression of "thoughts or sentiments." This phrase is interpreted broadly and does not necessitate profound philosophical ideas or intense emotions. Rather, it generally encompasses human mental activity or "feelings". The Tokyo High Court, in a judgment on February 19, 1987 (concerning an election forecast table), affirmed this liberal interpretation, suggesting that a general level of human intellectual or emotional engagement is sufficient.

Consequently, what this element primarily excludes are mere raw facts or data devoid of any human intellectual processing in their presentation. For instance, a simple list of train departure times or an unadorned menu listing dishes would likely not qualify. Similarly, raw atmospheric pressure data collected from various geographical points, in its unprocessed state, would not be considered a work.

Article 10, Paragraph 2 of the Act further clarifies this by stating that "miscellaneous reports and news of the day which are mere conveyances of facts" (事実の伝達にすぎない雑報及び時事の報道) are not considered linguistic works. This provision is seen as confirming the "thoughts or sentiments" requirement, excluding items like brief death notices of public figures.

However, it is crucial to note that even if the primary purpose of a production is the conveyance of facts, it can still qualify as a work if the manner of conveying those facts involves creativity or the author's "feelings". Most newspaper articles, for example, are considered works because the journalist's selection of information, the structure of the article, and the linguistic expression typically reflect their individual choices and perspective. Likewise, news photographs, despite capturing factual events, are generally protected due to the photographer's creative input in composition, lighting, exposure, and other adjustments.

2. The Author's Imprint: "Creativity" (創作的に - sōsakuteki ni)

The second pillar is that the expression of thoughts or sentiments must be done "creatively." In Japanese copyright law, "creativity" (sōsaku-sei) is generally understood to mean that the author's "individuality" or "personality" (kosei) is expressed in the work. This is a significantly lower threshold than requiring novelty, originality in a strict sense, or high artistic merit. The Tokyo High Court, in the aforementioned February 19, 1987 decision, and the Tokyo District Court in a March 31, 2000 judgment (concerning watermark tape), have supported this interpretation.

If a work is not a mere copy of another's work and involves some level of personal expression by the author, creativity is usually affirmed. Even works that might not immediately strike an observer as exceptionally unique or distinctive can meet this standard. For example, drawings by young children, while varying in skill, typically exhibit individual characteristics and are almost all considered copyrightable works. The same applies to their diaries, regardless of whether they reach the literary level of a professional essayist; the artistic or literary value of a work is irrelevant to the assessment of creativity.

Conversely, creativity may be denied in cases where:

• The scope for free expression is extremely limited: If the expression is very short and simple, or if external constraints severely restrict the possible ways of expression, there may be little room for the author's individuality to manifest. Such expressions are often seen as merging with the underlying idea or fact, or simply lacking creativity.
  • For instance, a concise academic definition of a "castle," derived from extensive research, was denied copyrightability on the grounds that it represented the academic thought itself, with no creative expression in its form (Tokyo District Court, April 25, 1994 - Nihon no Shiro no Kiso Chishiki case).
  • An "IBF file," containing instructions for installing software, was found to have its expression largely dictated by the application program, leaving minimal room for creative choice (Tokyo District Court Decision, February 27, 1991 - IBF File case).
  • News headlines, due to their nature of concisely conveying information within character limits, often have limited scope for creative expression. Headlines such as "Manners-Ignorant University Professor Sells Pirated Manners Book" or "E.F. Enjoys Steaming Footbath at Akakura Onsen" were denied creativity (Tokyo District Court, March 24, 2004 - Yomiuri Online I case; Intellectual Property High Court, October 6, 2005 - Yomiuri Online II case).
• The expression is commonplace or trivial (arihureta hyōgen): Expressions that are entirely mundane, ordinary, or consist of stock phrases, even without specific external constraints, will lack the necessary creativity. Several court decisions have reiterated that such commonplace expressions do not warrant copyright protection (e.g., Tokyo High Court, October 30, 2001 - Kōtsū Hyōgo (Traffic Slogans) case).
  • A poignant example is the Tokyo District Court judgment of December 18, 1995, in the Last Message in Saishūgō case. The court found that a farewell message to readers in a magazine's final issue, using common phrases and typical sentiments for such occasions, lacked creativity.

This Japanese approach to creativity, focusing on the author's individuality, contrasts with the U.S. standard of "originality," which, as articulated in Feist Publications, Inc. v. Rural Telephone Service Co. (499 U.S. 340 (1991)), requires "at least a minimal degree of creativity." While both standards aim to exclude trivial or purely functional elements, the articulation in terms of "individuality" in Japan may lead to slightly different outcomes in borderline cases.

3. From Idea to "Expression": The Idea-Expression Dichotomy (アイデアと表現の二分論 - aidea to hyōgen no nibunron)

The third critical element is that the thoughts or sentiments must be "expressed." This underpins one of the most fundamental principles in copyright law worldwide: the idea-expression dichotomy. Japanese copyright law protects the concrete expression of an idea, not the idea itself. The Supreme Court of Japan affirmed this principle in its judgment of June 28, 2001 (concerning the folk song Esa oiwake).

The rationale for this dichotomy is to prevent the monopolization of ideas, themes, concepts, or systems by copyright. If underlying ideas were protectable, it would unduly restrict subsequent creative endeavors that might build upon or utilize those same ideas, thereby hindering the cultural development that copyright law aims to promote. Ideas, therefore, are considered to be in the public domain, free for anyone to use.

Japanese courts have applied this principle to various scenarios:

• Academic theories or doctrines (学説 - gakusetsu): Sharing the same academic thesis as a prior work does not constitute copyright infringement if the concrete written expression is entirely different. The underlying theory is an unprotectable idea (Tokyo High Court, March 19, 1987 - Miura Baien II case; Tokyo District Court, December 16, 1992 - Chūgoku Enseishi (History of Chinese Salt Administration) case).
• Abstract definitions: As seen in the Nihon no Shiro no Kiso Chishiki case, a scholarly definition, even if the result of extensive research, can be deemed an unprotectable idea if it represents the academic thought itself with minimal expressive variation.
• Mathematical propositions and their solutions (数学命題の解明過程 - sūgaku meidai no kaimei katei): The process of solving a mathematical problem is considered an idea, not a protected expression, to avoid hindering further scientific development (Osaka High Court, February 25, 1994).
• Artistic style or method (作風 - sakufū, 手法 - shuhō): Merely adopting a particular artistic style, such as Cubism, and applying it to a new subject matter would generally not infringe the copyright in earlier Cubist works, as the style itself is an idea (assuming the new work doesn't copy specific expressive elements of a protected work).

The line between an unprotectable idea and a protectable expression can often be subtle. Copyright protection extends beyond the literal text of a novel to encompass its concrete story, including plot development, the sequence of events, and the specific depiction of characters and their interactions. This is why an unauthorized screenplay adaptation or a film based on a novel can infringe copyright, as recognized by Article 2, Paragraph 1, Item 11, which lists "dramatization" (脚色 - kyakushoku) and "cinematization" (映画化 - eigaka) as forms of adaptation.

However, if only a very abstract plot outline, "the gist of the work" (作品の骨子 - sakuhin no kosshi), or a "basic storyline" (基本的な筋書き - kihonteki na sujigaki) is taken, this is likely to be considered the use of an unprotectable idea. The Tokyo District Court case of June 29, 1998 (Jigoku no Takushī (Hell Taxi) case) illustrates this. A manga and a TV program shared a basic plot where a doctor who disregarded animal life was subjected to frightening experiences by animals. The court found this to be merely a shared basic storyline (idea) because the specific settings, character developments, and individual scenes were substantially different, thus no infringement.

This distinction is akin to the U.S. principle, famously explored in cases like Nichols v. Universal Pictures Corp. (45 F.2d 119 (2d Cir. 1930)), which distinguished between abstract plot ideas and sufficiently developed characters and sequences of events.

4. The Realm of Creation: "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 han'i ni zokusuru mono)

The final requirement is that the creative expression of thoughts or sentiments must fall within the "literary, academic, artistic, or musical domain." This phrase is generally interpreted quite broadly to mean that the work must be a product of intellectual or cultural activity. It is not a strict requirement that a work fit precisely into one of these four enumerated categories. For instance, cinematographic works (eiga no chosakubutsu), often considered a comprehensive art form (sōgō geijutsu) incorporating elements from multiple domains, are explicitly protected (Article 10, Paragraph 1, Item 7). Similarly, computer programs (puroguramu no chosakubutsu), which might not be considered "literary works" in the traditional sense, are also listed as a type of copyrighted work (Article 10, Paragraph 1, Item 9).

A Special Case: "Art" (美術 - bijutsu) and Applied Art (応用美術 - ōyō bijutsu)

While the domain requirement is generally flexible, the interpretation of "art" (bijutsu) has historically been more stringent in Japanese copyright law, primarily concerning applied art (designs incorporated into useful articles like tableware or furniture). Art experts might argue that there is no essential difference between "pure art" (junsui bijutsu), created solely for aesthetic appreciation, and applied art. However, Japanese courts have traditionally interpreted "art" under copyright law to refer principally to pure art. This narrow interpretation stems from the existence of a separate Design Act (意匠法 - ishōhō) for protecting industrial designs, leading to a desire to delineate the scope of copyright from design rights.

Despite this general tendency, Article 2, Paragraph 2 of the Copyright Act explicitly states that "artistic craftsmanship" (bijutsu kōgeihin) is included within artistic works. This suggests that applied art possessing characteristics comparable to pure art can receive copyright protection. The debate then shifts to what makes an applied art piece "comparable to pure art."

Historically, two main criteria, or a combination thereof, have emerged from case law for determining the copyrightability of applied art:

• High Degree of Aesthetic Quality (美の高度性基準 - bi no kōdosei kijun): Some courts have suggested that applied art needs to possess a high level of artistic value to be protected by copyright. This was seen in the Kobe District Court, Himeji Branch decision of July 9, 1979 (Butsudan Chōkoku case), concerning Buddhist altar carvings, which stated that only visual representations aiming for a high degree of aesthetic expression fall under copyright, with others being the domain of design law. Similarly, the Tokyo High Court on December 17, 1991 (Mokume Keshōshi case - wood grain decorative paper) suggested that even items made solely for practical application could be copyrighted if they possess high artistry, like a work by a famous painter, such that they are recognized by social common sense as having the nature of pure art.
• Separability from Utilitarian Function (分離可能性基準 - bunri kanōsei kijun): This standard considers whether the aesthetic features of a useful article can be conceptually separated from its practical or functional aspects. If the design is largely dictated by function (e.g., a typical bicycle design), it's less likely to be separable. If the design is highly unique and goes far beyond functional requirements, it might meet this test. The Osaka High Court decision of February 14, 1990 (Nīchea case - Nii Chair) stated that "art" under copyright generally means pure art, and applied art is protected only if it's "artistic craftsmanship," defined as something that, apart from its utility and function, can be appreciated as a complete work of art in itself. The Tokyo District Court on April 20, 1981 (Tīshatsu case - T-shirt design) indicated that applied art could be protected if, objectively viewed, it was created purely in pursuit of aesthetic expression without substantial constraints from its practical purpose, and could be equated with pure art like paintings or sculptures.

Overall, the bar for copyright protection of applied art in Japan has traditionally been high, regardless of the specific terminology used by the courts.

The "Unity of Art" Theory and the TRIPP TRAPP Case:

A contrasting view, known as the "unity of art" theory (bi no ittaisei no riron), argues against imposing special, heightened requirements for applied art. Proponents of this theory point out the difficulty in distinguishing pure and applied art, the questionable relevance of the Design Act's existence to copyright interpretation, and suggest that the standard creativity requirements should suffice. This view is influential in some European jurisdictions like France and Germany.

A significant development in Japan was the Intellectual Property High Court decision of April 14, 2015, in the TRIPP TRAPP case (concerning the design of an infant chair). This judgment appeared to embrace the unity of art theory, stating that there is no reasonable basis to apply stricter standards for copyrightability to applied art merely because it might also be protectable under design law. The court suggested that doing so could unfairly deny copyright to expressions that would otherwise meet the individuality threshold. It found the TRIPP TRAPP chair design to be an artistic work based on standard creativity criteria. However, the court also noted that because applied art must still serve a practical purpose, the scope for expressing individuality is often limited, leading to a relatively narrow scope of copyright protection if affirmed. This means that while copyrightability might be easier to achieve, proving infringement (i.e., substantial similarity) might remain challenging. The long-term impact of this decision on the broader landscape of applied art protection in Japan is still being observed.

This approach shows some parallels with the U.S. Supreme Court's decision in Star Athletica, L.L.C. v. Varsity Brands, Inc. (580 U.S. ___ (2017)), which clarified the test for conceptual separability for pictorial, graphic, or sculptural features incorporated into the design of a useful article.

Illustrative Categories of Works (Article 10)

Article 10 of the Japanese Copyright Act provides a non-exhaustive list of examples of works, demonstrating the breadth of subject matter that can be protected if the definitional requirements of Article 2(1)(i) are met. These include:

• Linguistic works (言語の著作物 - gengo no chosakubutsu): Novels, scripts, essays, lectures, most newspaper articles. Even short forms like haiku are generally considered creative.
• Musical works (音楽の著作物 - ongaku no chosakubutsu): Compositions, including lyrics when used with the music.
• Choreographic works and pantomimes (舞踊又は無言劇の著作物 - buyō mata wa mugongeki no chosakubutsu): Dance "forms" or "choreography" if creative, and pantomimes.
• Artistic works (美術の著作物 - bijutsu no chosakubutsu): Paintings, engravings, sculptures. Calligraphy (sho) can qualify based on the aesthetic and creative elements beyond the characters themselves. Typefaces (taipufeisu) generally face a high bar for protection, requiring striking originality and aesthetic quality beyond mere legibility (Supreme Court, September 7, 2000 - Gona U case).
• Architectural works (建築の著作物 - kenchiku no chosakubutsu): Buildings, bridges, gardens, if creative, though courts tend to be somewhat strict.
• Maps, as well as academic plans, charts, sketches, and models (地図又は学術的な性質を有する図面、図表、模型その他の図形の著作物 - chizu mata wa gakujutsuteki na seishitsu o yūsura zumen, zuhyō, mokei sonota no zukei no chosakubutsu): Maps can be protected if their selection of information, arrangement, or symbolization reflects the creator's individuality and knowledge. Design drawings (sekkeizu) may also qualify if they show creative expression beyond standard conventions.
• Cinematographic works (映画の著作物 - eiga no chosakubutsu): Generally defined as works expressed through sequences of moving images. This includes not only theatrical films but also home videos if creative, and significantly, video games (Supreme Court, April 25, 2002 - Chūko Gēmu Sofuto Ōsaka (Used Game Software Osaka) case).
• Photographic works (写真の著作物 - shashin no chosakubutsu): Protected if creative elements are present in aspects like subject selection, composition, lighting, shutter speed, exposure, and post-production processing. Mere photocopies or automatically generated images (e.g., from security cameras) would not qualify.
• Program works (プログラムの著作物 - puroguramu no chosakubutsu): As mentioned earlier, explicitly protected.

Comparing Japanese and U.S. Approaches to Copyright Subject Matter

While both Japan and the U.S. adhere to international copyright norms, their domestic laws and judicial interpretations present some key differences in defining what qualifies for protection:

1. Statutory Definition: Japan has a more explicit, multi-element statutory definition of a "work" in Article 2(1)(i). The U.S. Code (17 U.S.C. § 102(a)) defines subject matter more broadly as "original works of authorship fixed in any tangible medium of expression," with categories of works listed as examples.
2. Creativity/Originality Threshold: Japan's "creativity" focuses on the expression of the author's "individuality" or "personality," which is generally seen as a low threshold. The U.S. "originality" requirement, post-Feist, demands a "minimal degree of creativity" but also independently created by the author. While often leading to similar outcomes, the conceptual framing differs.
3. "Thoughts or Sentiments": This uniquely Japanese element, while broadly interpreted, contrasts with the U.S. focus on "authorship." It emphasizes the human intellectual or emotional origin.
4. Applied Art/Useful Articles: Japan has traditionally maintained a stricter separation between copyright and design law for useful articles, often requiring a "high degree of aesthetic quality" or clear "separability" for copyright protection, though the TRIPP TRAPP case may signal a shift towards a more unified view of art. The U.S. employs a conceptual separability test for features of useful articles, as clarified in Star Athletica.
5. Enumeration of Works: While Japan's Article 10 lists categories of works, these are explicitly illustrative. The U.S. § 102(a) also provides an illustrative list. Both systems are open to new forms of expression.

Conclusion

Defining a "work" under Japanese copyright law involves a careful assessment of the four core elements: the expression of thoughts or sentiments, creativity stemming from the author's individuality, the tangible expression itself (as distinct from the idea), and its placement within the broad cultural domains. While the threshold for creativity is relatively low, the application of these principles, especially to functional items or works with limited expressive scope, requires nuanced, case-by-case analysis. For businesses and legal professionals operating in or with Japan, understanding these foundational concepts is crucial for effectively managing and protecting intellectual property.