Who is the "Observer" When Japanese Courts Assess Copyright Similarity?

In Japanese copyright law, the crucial test for determining whether an allegedly infringing work is unlawfully similar to a copyrighted original hinges on whether "a person who comes into contact with it" (これに接する者 - kore ni sessuru mono) can "directly perceive the essential expressive features" of the original work within the later one. This standard was notably articulated by the Supreme Court in the Esashi Oiwake case (June 28, 2001). However, a significant question remains largely unanswered by definitive high-court jurisprudence: Who exactly is this hypothetical "person who comes into contact with it"? The perspective adopted for this "observer" can profoundly influence the outcome of a copyright similarity analysis.

The Significance of the Observer's Standpoint

The identity and characteristics of this notional observer are not mere academic curiosities; they have direct practical implications. Different types of observers bring varied levels of knowledge, attention, and familiarity with specific artistic genres, technical fields, or cultural contexts. This, in turn, affects:

• What they might consider to be an "essential expressive feature" of a work.
• Whether they "directly perceive" such features in a subsequent work, or if those features are obscured by differences or appear commonplace.
• The overall assessment of similarity and, ultimately, the finding of copyright infringement.

For instance, a specialist in a particular art form might discern subtle but creatively significant similarities that a layperson would overlook. Conversely, a general observer might be struck by superficial resemblances that an expert would dismiss as common tropes or unprotectable ideas. Thus, the lens through which similarity is viewed is a critical, albeit often unstated, parameter in infringement litigation.

Potential Candidates for the "Observer"

Legal scholarship and judicial reasoning in Japan have implicitly or explicitly considered several potential candidates for this "person who comes into contact with it":

1. The Average Person / General Public (一般人 - ippanjin)
   One interpretation is that the test should be applied from the viewpoint of an ordinary, reasonable member of the public, possessing no specialized knowledge of the particular field or genre of the work in question.
   • Rationale: Copyrighted works, especially those in popular culture, are often intended for a broad public audience. Therefore, the perception of this general audience could be considered relevant to how the work is experienced and whether a subsequent work is perceived as a "take."
   • Challenges: The "average person" is an inherently vague construct. For works that are highly technical, artistically niche, or culturally specific, an average person's assessment might lack the necessary discernment. They might overemphasize superficial similarities or fail to recognize genuine creative contributions and their appropriation.
2. The Target Audience / Consumer / User (需要者 - juyōsha, 利用者 - riyōsha)
   A more refined approach suggests that the observer should be a typical member of the target audience for whom the copyrighted work and the allegedly infringing work are intended.
   • Rationale: This perspective aligns the similarity assessment more closely with the actual context in which the works are encountered and consumed. The perceptions of those who regularly engage with such works are arguably more pertinent.
   • Judicial Consideration: This viewpoint has found some resonance in court decisions. For example, in a case concerning a social network game involving professional baseball player cards (Intellectual Property High Court, June 24, 2015, the Pro Baseball Dream Nine case), the court considered the likely knowledge of the game's users. It reasoned that users familiar with professional baseball would already know player details like team affiliation and jersey numbers if the player's image was identifiable. Consequently, the specific way this factual information was displayed on a virtual card might not constitute an "essential expressive feature" that particularly captures the attention of such an informed user, suggesting that the attributes of the target audience influenced the court's assessment of what is "essential" and "perceivable."
   • Challenges: Defining the "target audience" with precision can still be difficult, as audiences are rarely homogenous. Moreover, this approach might become circular if the defendant's work targets a slightly different audience than the plaintiff's.
3. The Creator / Expert in the Field (創作者 - sōsakusha, 専門家 - senmonka)
   Another perspective posits that the assessment of similarity, particularly the identification of "essential expressive features," should be informed by the viewpoint of a creator or expert within the specific field or genre.
   • Rationale: Individuals with specialized knowledge are better equipped to distinguish genuinely creative contributions from unprotectable ideas, common techniques, or scenes à faire (elements standard to a particular genre). They can make a more informed judgment about what constitutes the "essential expressive features" of a work and whether those features have been meaningfully reproduced. This is particularly relevant because the similarity analysis in Japan involves filtering out non-creative elements.
   • Challenges: Relying solely on an expert perspective might lead to an overly technical or narrow view of similarity, potentially underestimating the impact of a work on its intended lay audience, who might perceive similarity more broadly. It could also be argued that copyright ultimately protects the work's value in the eyes of its consumers, not just its technical merit among peers.

Academic Perspectives on the Observer's Role

Japanese legal scholars have also weighed in on this issue, often connecting the observer's identity to the specific aspect of copyright analysis being undertaken:

• Some scholars, particularly those who advocate for the "Overall Comparison Theory" (which allows for differences to negate similarity even if some creative elements are shared), suggest a bifurcated approach. Professor Hisayoshi Yokoyama, for instance, has argued that when determining whether a common part of an expression is creative, the perspective of a creator is relevant, as this analysis implicates the freedom of expression for other creators. However, when assessing whether the defendant's work allows for the "direct perception" of the plaintiff's work's features (a more holistic judgment), the viewpoint of the general user or addressee of the defendant's work should prevail.
• Other scholars, like Professor Yoshiyuki Tamura, even within a framework closer to "Creative Expression Monism" (where "essential features" align closely with "creative expression"), have suggested that different perspectives might be relevant for different sub-questions. For instance, when determining if an expression is creative (as opposed to commonplace), the perspective of the consumer or user might be pertinent, as this relates to market perception and potential substitutability. Conversely, when distinguishing an idea from an expression, the creator's perspective might be more relevant, as this touches upon the scope of creative freedom and available expressive choices.

These academic viewpoints underscore the complexity of selecting a single, appropriate "observer" for all facets of the similarity analysis.

The "Informed" Observer

An interesting nuance arises when considering the information available to this hypothetical observer. It's not necessarily a completely naive individual. If, during litigation, a defendant presents evidence of numerous pre-existing works that are similar to the plaintiff's work (and created independently of it), the "person who comes into contact with it" for the purpose of the court's judgment is arguably an observer who is now aware of these other examples. This awareness can influence their perception of the plaintiff's work's originality and the commonplaceness of any shared features. In such a scenario, what might have seemed unique to an uninformed observer could appear as a common or standard expression to one who is "educated" by the evidence presented in court.

Potential Variation Based on the Type of Work

Implicitly, the nature of the copyrighted work itself might influence the most appropriate observer perspective.

• For mass-market works like popular music, mainstream films, or widely recognized characters, the perception of the general public or the intended consumer base often seems most relevant.
• For highly technical or specialized works, such as architectural blueprints, scientific diagrams, or complex computer programs, an expert's eye may be indispensable for accurately identifying creative contributions and meaningful similarities that a layperson could not grasp.
• For niche artistic creations or avant-garde works, the perspective of a discerning audience familiar with that specific artistic domain, or of fellow artists, might be a more fitting benchmark.

A Brief Comparison with the U.S. "Ordinary Observer" Test

The Japanese concept of the "person who comes into contact with it" invites comparison with the "ordinary observer" test prevalent in U.S. copyright law. The U.S. test generally asks whether an average lay observer, when comparing the two works, would conclude that the allegedly infringing work was unlawfully appropriated from the copyrighted work.

However, U.S. law also acknowledges nuances. While the ultimate question of substantial similarity (especially the "intrinsic" aspect focusing on the total concept and feel) is often for the lay observer (or jury), the "extrinsic" part of the analysis, which involves dissecting works to compare objective similarities in protectable elements, often permits or even requires expert testimony to filter out unprotectable ideas and identify shared protectable expressions.

The Japanese formulation, "a person who comes into contact with it," is broad enough to accommodate similar debates and potentially allow for a flexible approach, where the characteristics attributed to this hypothetical observer can be adapted, at least implicitly, to the context of the works in question.

Conclusion: An Evolving and Contextual Standard

The precise identity and attributes of the "person who comes into contact with it" – the hypothetical observer in Japan's "direct perception" test for copyright similarity – remain an evolving and somewhat undefined aspect of Japanese copyright jurisprudence. The Supreme Court's Esashi Oiwake decision provided the crucial phrase but did not offer a detailed profile.

Consequently, whether the standard leans towards an average person, a specific target user, or an expert in the field can vary, often implicitly, based on the nature of the copyrighted work, the arguments presented by the parties, and the specific legal question being addressed (e.g., distinguishing idea from expression versus assessing the creativity of an expression). This lack of a rigid definition allows for a degree of judicial flexibility but also introduces an element of uncertainty. Litigants and legal professionals must be prepared to argue which perspective is most appropriate for the specific case at hand, as this choice can significantly shape the court's evaluation of what constitutes a "directly perceivable essential expressive feature" and, ultimately, the determination of copyright infringement. Future case law may provide further clarification, but for now, the "observer" remains a nuanced and context-dependent element in the complex equation of copyright similarity in Japan.