Conceptual Fallacies behind the Idea of Unprotected Intellectual Works


  • Yoshiyuki Tamura


In the midst of the global pervasive proliferation of intellectual property protection, an ‘if there exists unprotected intellectual works, it is a bad thing’ -type argument can be observed in several ways. Actually, in legal theory, as well as in the enforcement of intellectual property rights, we often hear suggested that there is an area without any protection of intellectual works or if there is any legal protection, it is deemed to be insufficient with regards to protection of certain intellectual works. In this essay, I will use the term “intellectual works” which broadly refers to all those intangibles which are the result of human intellectual, creative or inventive labor. When someone says that there is an area with insufficient or lacking protection of intellectual works, I think that there are three types of assumptions behind this expression. The first assumption is that there is a “thing” or object that embodies an intellectual work. The second assumption is that if there is no or insufficient protection over this type of intellectual work as an object, it will cause tensions or frictions in society, since such object belongs to its creator. The third assumption is that the protection of such intellectual works should be provided for in the form of law.