‘Intellectual Property’ as a Metaphor: A Recommendation for an Understanding as ‘Governmental Regulation of Actions’

In the realm of intellectual property law, there is often a rhetoric that there exists an intangible entity called ‘intellectual property,’ and that people are utilizing it. For instance, the ‘implementation’ of an ‘invention’ (Art. 68 of the Japanese Patent Act), and the ‘reproduction,’ ‘public transmission,’ and ‘use’ of a ‘work’ (Arts. 21, 23(1), and 28 of the Japanese Copyright Act). In these contexts, it is presupposed that intellectual creations and the ‘actions’ of their utilization are distinctly separate. In other words, it seems to be assumed that while there are human actions of utilization, there exists, separately from those actions, an object of the action. However, the distinction between the two is merely relative. Consider, for example, how one perceives the act of transmitting a specific program over a network. The position under Japanese copyright law on this matter is clear, viewing it as an ‘act’ of publicly transmitting a work (intangible entity) that is a specific program (Art. 23(1) of the Copyright Act). On the other hand, how does patent law view this? It depends on how the claim is written. If a specific program is claimed as an invention (it is possible in Japan), the transmission is understood as an ‘act’ of implementing the invention. However, if the method of transmitting the program is claimed as an invention, the transmission method is perceived as an intangible ‘entity.’