Conceptual Fallacies behind the Idea of an Area without Protection of Intellectual Property Works

Professor Yoshiyuki Tamura

Abstract

Conventionally, the protection of intellectual works by granting copyrights, patents, trademarks or other intellectual property rights has its limits which cause that some intellectual works are fully protected, while the others are left with weaker or even no protection at all. Since the advent of modern intellectual property laws, these boundaries of an “area without protection of intellectual works” have been again and again challenged in order to strengthen and extend intellectual property protection to cover various forms of previously “unprotected” intellectual works. The claims made in intellectual property scholarship as well as law making to support such extension of intellectual property protection are often based on several theoretical concepts of intellectual works (“intangibles”). Depending on respective theoretical underpinnings, the lack of protecting such intellectual works by intellectual property laws is deemed to be unfair or inefficient.

This keynote speech points out that the main problem of these theoretical concepts is that they significantly depart from actual patterns of human behavior. As a solution, it is argued that any sound intellectual property law and policy must focus on concrete aspects of human behavior patterns—so-called “connecting points” for regulating human activities. There is thus no need to regulate all possible exploitations of intellectual works. The intellectual property rights should restrict only certain human conduct.

However, the rule-makers have some room in conceptualizing the respective connecting points for regulating individual human activities. To avoid possible shortcomings, it is advocated here that the rule-makers should take into account actual factors affecting intellectual property law making, as well as its application and enforcement, such as various minoritarian biases that often occur in these processes.

To minimize the occurrence of minoritarian biases, it is essential to find an appropriate and adequate division of roles between market, lawmaking and judiciary in regulating human activities, especially, from the standpoint of achieving sufficient legitimatization of individual policy making processes. This keynote speech shows the advantages of a market-driven approach toward intellectual property laws through examining the regulation of passing-off and slavish imitations.

Conference Paper