Written By: Mark Ong
For the uninitiated, the scope of Intellectual Property (IP) law is broad and diverse. Typically used as a catch-all for copyright, patent and trademark laws, it is also taken to cover the formulation, usage and subsequent commercial exploitation of original creative labour.[1] Although a quick historical reading tells us that the origin of its usage dates back to almost 150 years ago, meaningful strides made in this area of law have only been a relatively recent development due to a confluence of factors.[2]
In 2002, the Japanese government had stated their renewed desire to redevelop the country’s Intellectual Property law in a speech by the Prime Minister at the time, Mr. Koizumi. He mentioned that the government would make it a ‘national objective to protect and leverage the results of R&D and creative activity [through] IP’.[3] Having highlighted the importance of developing this area of Law, the government has spent considerable resources in developing Japan into an ‘IP Rich Country’ through the two-step IP Strategy it outlined in the same year.
After the initial plans that defined the creation, protection and use of Intellectual Property as a basic duty within the system of national principles was floated, by March 2003, the bill was passed in both parliamentary houses (Councillors and Representatives) and thereby became established law. This lay the groundwork on which subsequent relevant laws related to Intellectual Property were built. Going a step further, the government also set-up an arm (IP HQ), spearheaded by the Prime Minister and supported by Cabinet and Opinion leaders, which was designed to deal specifically with intellectual property issues. Its main responsibility was coordinating with other government agencies in promulgating the new Intellectual Property policies. Furthermore, given the unpredictability of conditions that directly affected the intended outcomes of IP HQ, it was to adopt yearly rolling plans whenever it saw that it served its interests.
Such a strong statement of intent issued by the Japanese government in wanting to undertake drastic reform of its Intellectual Property laws can be explained by a short examination of Japan’s economic position at the time.
Tracing Japan’s history, at the start of the Meiji Era (1868-1912) its economy was heavily reliant on agriculture where 90% of the population was engaged in work of such nature. With the development of industry and commerce, the country then made its transition towards machinery and facilities which were required to meet the increasing demand for cheap goods. At another chronological juncture after, the advent of the IT revolution then conferred a special degree of importance on software and artificial intelligence which forged the foundation of what is now known as ‘knowledge economics’.[4] Innovation is thus the key driver of modern economies today, which are growing increasingly reliant on the performance of its technological sectors. As a safeguard against the theft of valuable innovation and the subsequent impact it would have on the value of original creations, Intellectual Property law thus gained the recognition it deserved.
Outside the advances in technology, the increased reliance on patents in the burgeoning biomedical sector and by multi-national companies as part of their corporate strategies have pressured the Japanese government into reestablishing Intellectual Property laws. As drugs and DNA sequences became valuable commodities that could be patented, multi-national companies have focused on Intellectual Property as a crucial aspect of their business to fend off stiff competition in an increasingly globalized market. Both have found that Trademarks and Brands, components of Intellectual Property, have been important in instilling consumer confidence and garnering their trust – integral factors of long-term growth and profit.
In a bid to secure lucrative business and foreign direct investment, the Japanese government felt the urgent need to improve its standing among the international community as an attractive destination with robust Intellectual Property laws and ultimately, a haven where business prospects would be limitless.
As of late, with its position as a leader in technology, having the largest number of R&D patents in the world and a steadily growing economy which rebounded after the 2011 disasters, there is a strong case to be made that its Intellectual Property strategy has paid dividends.[5]
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1] Routledge-Cavendish, Intellectual Property Law (Cavendish Publishing, 2006) p2. [2] Bentley and Sherman, Intellectual Property Law (Oxford University Press, 2018) p95-100. [3] Hisamitsu Arai, ‘Japan’s Intellectual Property Strategy’ (World Patent Information, Volume 28, Issue 4: December 2006) https://doi.org/10.1016/j.wpi.2006.07.006. [4] Lamberton Don, ‘The Knowledge Economy’ (Agenda, Volume 11, Issue 4: 2004) www.jstor.org/stable/43199294. [5] World Bank, GDP Growth (Annual %) 2002 – 2018.