An important trend in Japan’s intellectual property legislation started in February 2002, when then the Prime Minister Junichiro Koizumi declared the “IP-based Nation” policy. Shortly after, the Strategic Council on Intellectual Property was set up, which announced an Intellectual Property Strategic Program every year since then.
The accomplishment of the "IP-based nation" policy to date can be summed up in the following three points: establishment of the Secretariat of Intellectual Property Strategy Headquarters, the implementation of Annual Intellectual Property Strategic Programs, and the establishment of the Intellectual Property High Court in 2005. However, anti-patent storm has waged for several years. Only recently the IP High Court is showing a more patentee-friendly tendency. Regarding the substantive laws, no big changes can be observed through the more than 10 years of operation of Annual IP Strategic Programs in most fields of intellectual property laws, except Copyright Law.
In order to fully evaluate Japan's intellectual property strategy, one needs to look at the relatively long history of Japan's intellectual property legislation, which did not reach the minimum protection levels set forth in the TRIPS Agreement until early 1990s when legislation on trade secret protection (1990) and the service mark protection (1991) was enacted. Moreover, it was not until late 1990s, when three-dimensional trademarks (1996) and the Doctrine of Equivalents (1998) were adopted and the system regarding damages for infringements was reformed, had Japan became a country with strong intellectual property protection. To forget that history and force developing countries to reach a level of IPR that Japan could only reach in the 1990s when it was the world’s second largest economy, as if it were something that contributes to the development of industries and is the ethically logical thing to do, is off the mark. Further, an understanding of such history indicates that we should, in thinking not only about foreign countries, but also about the future IP legislation in Japan, proceed with deep reflection on whether the enhancement of intellectual property rights really leads to industrial development.
Regarding copyright aspects of “IP-based Nation”, diverse proposals for strengthening copyright protection have been put forward by various interest groups. However, to achieve the true goals of copyright systems, development of culture, a more cautious approach might be desirable. The interests of stakeholders who are hardly able to influence the policy-making process should be a priori protected by legislation, possiblby by a default rule that would meet their demands and make those who have power and hope their rights to be protected, take actions for themselves. In addition, to require renewal registration of copyright after a relatively shorter initial term of protection can be advisable. So is the introduction of a general fair use doctrine , as it will shift part of the policy making process from the politically biased legislature to the judiciary, which is relatively immune from lobbying.
Yoshiyuki TAMURA is the Professor of intellectual property at Hokkaido University. He also serves, inter alia, as the Program Director of the Research Institute for Information Law & Policy at Hokkaido University; Member of the Committee on Intellectual Property Policy, Industrial Structure Council; Managing Director at Japan Association of Industrial Property Law; Member of the Board of the Copyright Law Association of Japan; and Member of the Committee at the Japan Patent Attorneys Association. His research interests include, but are not limited to, copyright law, patent law, trademark law and unfair competition law. Professor Tamura has published more than ten books on various topics of intellectual property (some of them have been published in several editions) and numerous law review articles, which include Rethinking Copyright Institution for the Digital Age, 1 W.I.P.O.J. 63-74 (2009); A theory of the Law and Policy of Intellectual Property: Building a New Framework, 2009 (1) Nordic Journal of Commercial Law 1-29 (2009); Patent Enforcement in Japan, inThe Enforcement of Patents (Reto Hilty & Kung-Chung Liu eds., Kluwer Law International 2011) (co-authored with Prof. Masabumi Suzuki); Intellectual Property Law (5th ed., Yuhikaku 2010) (in Japanese); Intellectual Property Law (Intellectual Property Publishing 2010) (in Chinese); Case Guide for Patent Law (4th ed., Yuhikaku 2012) (in Japanese); Unfair Competition Law (2d ed., Yuhikaku 2003) (in Japanese); Copyright Law (2d ed., Yuhikaku 2001) (in Japanese); Trademark Law (2d ed., Kobundoh 2003) (in Japanese). Besides, he is also a frequent speaker at various international conferences all over the world and contributes to the ongoing debates concerning current debates on intellectual property law and policy.
Kung-Chung LIU holds an LL.B. and LL.M. from National Taiwan University and a Doctorate from the Ludwig Maximilian Universitaet (University of Munich). He was a Research Fellow at Academia Sinica, Taiwan until 2017. In 2003, he was a Visiting Professor at the Faculty of Law of the National University of Singapore and a Visiting Senior Research Fellow for the IP Academy of Singapore. Professor Liu has served as one of the founding Commissioners of the National Communications Commission in Taiwan between 2006 and 2007. In 2014-15, he was a Visiting Professor at the School of Law, Singapore Management University, and the Founding Director of the Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA). In addition, he has been co-appointed Professor at the Renmin University, China (2017), and the Graduate Institute of Technology, Innovation & Intellectual Property Management, National Chengchi University, Taiwan (since 2010).
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Last updated on 16 May 2018 .