Toshiko Takenaka, Does a Cultural Barrier to Intellectual Property Trade Exist? The Japanese Example, 29 N.Y.U. J. Int'l L. & Pol. 153 (1996), https://digitalcommons.law.uw.edu/faculty-articles/345
New York University Journal of International Law and Politics
What is the so-called "cultural barrier to intellectual property trade?" No definition for this phrase readily came to me when I began exploring the topic. Japanese intellectual property scholars and professionals strongly suspect that their U.S. counterparts, who find institutional or economic explanations for discrepancies between European and American business customs, nevertheless tend to attribute the differences between Japanese and American business practices to cultural differences. Three popular arguments offered to substantiate this "cultural barrier to intellectual property trade" theory are: (1) the application of the concepts of competition and monopoly to intangibles such as technology and ideas is foreign to Asian culture; (2) Japanese imitation of basic technological innovation is rooted in Japanese culture; and (3) the Japanese only utilize the basic technology developed by U.S. inventors and do not add any new innovations themselves.
This paper proposes that the first argument does not apply to Japan. An analysis of historical developments reveals that technology and idea monopoly systems existed long before Japan adopted a modem intellectual property system similar to the European and American models. With regard to the second and third arguments, the Japanese Patent Office's survey on patent applications for semiconductor technology reveals that U.S. and European inventors produced early breakthrough inventions. This suggests that Japanese technological development policy tends to focus on the manufacture and application of technologies rather than on the creation of basic innovative technologies. However, the difficulties European countries faced in achieving technological breakthroughs implies that a cultural barrier cannot explain the difference. Finally, Japan's failure to excel at innovation does not create a barrier to intellectual property trade. License negotiations in the form of royalty payments for U.S. and European technologies, and/or grant-backs of improvements, tend to correct any trade imbalance caused by the Japanese focus on application and manufacture of technologies. In short, this paper argues that, upon close examination, the assumptions underpinning the "cultural barrier to intellectual property trade" theory demonstrate that the differences in Japanese and Western intellectual property practices are not grounded in culture. Furthermore, this paper argues that cultural differences do not create a barrier to intellectual property trade.