If you hear that Japan is betting the nation on a strategy of more intellectual property, as outlined in the government position paper of July 2002 and in the "Intellectual Property Basic Law" of December 2002, one could easily expect some rather extremist and one-sided plans.
Therefore I think it is remarkable to find the following text in the recent "Plan for Forwarding the Creation, Protection and Use of Intellectual Property" adopted by the Commission on Intellectual Property Strategy in July 2003 (Japanese version here, English translation by me). The July 2002 position paper contained a similar section, so this is not really new. But I still think it deserves some attention.
The relevant part is section 3 point (4) of the preface. Title of the preface: "Plan for Forwarding the Creation, Protection and Use of Intellectual Property: General Principles." Title of section 3: "Points to Be Considered when Making a Reality of the Concept of 'Building the Nation on Intellectual Property'". Title of point (4): "Importance of Competition Policy and Regard for Freedom of Speech".
And this is the text published under that heading:
"While it is certainly necessary to strenghten intellectual property in the information age, there are also problems associated with strengthening these rights. Concretely, the problems of competition and the conflict with the fundamental value of freedom of speech in modern society come to mind.To deal with the problems of competition, antitrust law will play a central role. If necessary, a strenghtening of antitrust law may be needed. In America, antitrust law is enforced rigorously against monopolies based on intellectual property. This approach assures competition. As a result, industry develops even more. In Japan there is also a need for balanced and fair measures.
There is also a possibility that, if the protection of intellectual property becomes all too exaggerated, a conflict with fundamental values of modern society as arises, values as the fair and free competition, the freedom of science and of research, and the freedom of speech. Therefore, it is necessary to keep in mind these fundamental values and aim for a balanced system of intellectual property.
And, while universities are required to fulfill the expectations regarding the creation and the use of intellectual property, one may not forget the primary function of universities, that of education. And for the design of the systems of intellectual property at universities it is important to have a flexible approach keeping in mind the diversity of science and research in universities.
I don't know what this text has in mind when talking about "rigorous enforcement of antitrust law against monopolies based on intellectual property in America". Maybe the Microsoft case. My impression is that the DOJ, far away from a position of "rigorous enforcement", rather has started a fundamental discussion on these issues only recently.
And it remains to be seen if the above calls for a balanced system have any influence when it comes to discussing concrete proposals.
However, it is remarkable to find this kind of language in the current general climate of intellectual property inflation. Even if you want to bet the nation on strenghtening intellectual property, there is a need to look for balance.