Originality and Creativity Under Japanese Copyright Law

Under the current Copyright Act of Japan, creativity, rather than originality, is used as a criterion of works protectable by copyright. But the concept of creativity is interpreted in Japan in much the same way as the concept of originality in other major countries. Creativity is affirmed as long as the author’s individuality can be perceived in the expression, and a higher level of creativity such as novelty or imaginativeness is not required. Against such an established view of creativity, some scholars have recently argued that the range of choice of expression, not the presence of the author’s individuality, should be used as a standard of creativity. What is controversial, however, is which aspects should be focused on in the examination of creativity in some types of copyrighted works, such as photographs, plans, and works of compilations. There is also a debate on how the author’s creativity in preexisting works should affect the scope of that author’s rights to derivative works.