【Research Center for the Legal System of Intellectual Property】

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An "Intellectual Property-based Nation" and International Harmonization of Intellectual Property

RA Sai Syoumei

Recently the circumstances of Intellectual Property Protection in China have hit the headlines of Japanese media. In addition, it seems Western nations setting a goal of making an "Intellectual Property-based nation" just like Japan have also strong interests in this issue.

Although the legal system of Intellectual Property has a long history, it was not so long ago that the word "IP-based nation" appeared in the history. In the '80s, the 20th century, the U.S. started developing the policy to strengthen Intellectual Property Right(IPR). After that, other countries including Japan also started to adopt national policies of "IP-based nation".

"IP-based nation" means that a nation develops its Intellectual Property to enhance international competitiveness. On the other hand, it also means that the policy leads to the country's benefits only after their IPR are protected in other nations. The interests of the country promoting "IP-based nation" policy often become an issue in the discussions about international protection of IPR. However, we must remember there are also national interests of other nations.

One country's interests always change according to the country's stages of development. They are reflected in its legal system as well. For example, the focus of Japan's marine commercial law moves from the protection of ship owners to the protection of shippers. In addition, the U.S. and Japan have removed compensation limits of international air carriers to passengers in the event of accidents. Furthermore, in terms of environmental issues, which attract worldwide attentions, the standards of environmentally-advanced countries are not steadfast. At the stages of development, there used to be an age of destruction of environment. The situation is the same in the protection of IPR.

The appearance of countries promoting the "IP-based nation" policy has separated "IP-advanced nations" from "IP-developing nations". Then, two groups started to be in conflict with each other over their interests. IP-advanced nations have enhanced the standard of IPR protection according to its stages of development. Now they are requesting their standard to the IP-developing nations. The IP-developing nations will insist on their standards of protection. To harmonize this conflict, establishing an international treaty would be one solution. However, in order to reach a consensus, the protection standard of the treaty does not always match the protection standards of IP-advanced nations. In addition, there would be a possibility to have different views from one person to another person over the issue of whether the obligation is fulfilled or not relating to the protection standard of the treaty. In fact, there are different views on the standard of IPR protection in China. Some say it is not enough while others say it is beyond the international level.

IP-advanced nations could force their protection standard to IP-developing nations. However, the measurement does not necessarily apply to all the nations. It might cause a friction. IP-advanced nations should take not only their interest but also the interests of IP-developing countries into consideration when they require IP protection. They should cooperate in enhancing awareness of IP protection as well as proposing an IP legal system suitable for each country.

While IP-developing nations must make efforts to improve their protection standard, IP-advance nations also must be aware that the IP-developing countries are following the same path of IP-advanced nations. This is the premise of international harmonization of Intellectual Property.