11

Importation, Possession, and Sale of Counterfeit andPirated Goods by Individuals

In this study, we examined the actual conditions of damage arising from importation, possession, and saleof counterfeit and pirated goods by Japanese citizens, the current measures implemented in order to cope withsuch damage, and legislative and other measures required in this context. First, we collected information on
actual damage, thereby improving our understanding of the possibility that while it becomes easier to imitate or
reproduce products with the advancement of technology and distribution methods becoming more global, acts
committed by individuals may affect not only the private domain but also the industrial domain. Next, we
discussed how to design a regulatory framework that will satisfy various requirements under the existing
Japanese legislations, such as guaranteeing property rights and ensuring due process, while achieving a balancewith other regulatory measures. We also investigated the latest legislative and policy measures in major
European countries, including France and Italy, as well as in the United States, with the aim to explore
appropriate methodology and ensure international harmonization. We hope that this issue will be understoodand discussed more widely so that both goals will be achieved equally to develop the Japanese industry throughappropriate protection and utilization of intellectual property and to improve the standards of wholesome,
economic, and cultured living for Japanese citizens.

Ⅰ Introduction
1

Purpose of the study

Counterfeit and pirated goods have negative
impacts on us in two aspects, affecting thebusiness activities of Japanese companies inoverseas markets, and also affecting Japaneseindustries and consumers in Japanese markets.
Damage caused by such goods has been becoming
increasingly serious in recent years. Due to theadvancement of globalization in the economy,cross-border transactions of counterfeit andpirated goods have become easier, and the inflow
of such goods from China and other Asian
countries to Japan is posing a problem. Customs
controls on such goods coming into Japan havebeen tightened under the Customs Tariff Law, butthere is an argument that the current control
level is not strict enough. Damage is also pointed
out with respect to importation, possession, andsale of intellectual property-infringing goods by
individuals. In particular, such acts are often
committed by parties disguised as individuals
who actually are acting “in the course of trade.”
The brand fashion industry strongly calls foractions against counterfeiting in such a manner.
Under the Japanese legal system, acts
committed by individuals are not regarded as acts
committed “in the course of trade,” and they are
therefore excluded from the scope of the effects
of industrial property rights. Also under the
Copyright Law, acts of importing or possessing

IIP Bulletin 2006

copyrighted works are not regarded as illegal andtherefore not prohibited unless such acts are
conducted for the purpose of distributing theworks in Japan, or in other words such acts fallwithin the category of acts deemed to be
infringements under Article 113.
Given such circumstances, the Intellectual
Property Strategic Program 2005 (adopted by theIntellectual Property Policy Headquarters on June
10, 2005) stated as follows: “At present,
individuals are not prohibited by law fromimporting and possessing counterfeit and pirated
goods, and the public awareness of counterfeit
and pirated goods is very weak. Therefore, inorder to make it clear to the public thatimportation and possession of counterfeit andpirated goods by individuals is harmful to society
and to prevent a deluge of such goods, by the endof FY 2005, the GOJ will further reconsider
prohibiting individuals from importing andpossessing counterfeit and pirated goods, and will
establish a new law or develop systems as
appropriate.” The program entrusted these works
to the National Police Agency, Ministry of Justice,
Ministry of Finance, Ministry of Education,
Culture, Sports, Science and Technology, andMinistry of Economy, Trade and Industry.
In this context, we studied the necessity andpossibility to legally regulate the importation,possession, and sale of IP-infringing goods by
individuals, and in particular, such acts involving
products that infringe trademark rights andcopyrights, which pose problems frequently.

● 88 ●

2

Contents and methods to conduct the
study, and the composition of the study
reportIn this study, by collecting cases andstatistical data available in Japan and interviewing
parties concerned, we examined the actual
situation of damage arising from the importation,possession, and sale of counterfeit and pirated
goods by individuals and the countermeasuresagainst such damage. In the course of considering
desirable regulations on IP-infringing goods, we
conducted a survey of national legislations
through outsourcing, in order to investigate theexisting regulations on goods other thanIP-infringing goods or goods that are prohibitedfrom being imported as well as the existing
deterrent measures other than criminal penalties,
thereby comparing the existing regulations withdesirable regulations. We also conducted anoverseas survey through outsourcing, in order toinvestigate the measures implemented in foreigncountries to cope with the importation,possession, and sale of counterfeit and pirated
goods by individuals, and collected othernecessary information available in literature andon the Internet, with cooperation from theSecretariat. Finally, we formed a committee of 15
members (chaired by Professor Kazufumi Dohi of
the Graduate School of International Corporate
Strategy, Hitotsubashi University) and discussed
the present issue based on the results of thesesurveys and the collected information on fouroccasions.

Ⅱ Actual Situation of Importation,
Possession,
and
Sale
of
Counterfeit and Pirated Goods
by IndividualsThis section gave an overview of the actual
conditions of damage arising from the importation,possession, and sale of counterfeit and pirated
goods by individuals and the measures currently
implemented to cope with this issue.
1

Actual conditions of damage arisingfrom importation, possession, and saleof counterfeit and pirated goods by
individuals

As shown in the cases examined in (1) of themain text of the study report, in the process
where counterfeit and pirated goods are imported

and distributed in the Japanese market, parties
disguised as individuals who are actually acting“in the course of trade,” import, possess, and sellsuch goods, in an attempt to evade law. However,as pointed out in (2), it is difficult under thepresent situation to grasp the actual conditions ofdamage systematically and qualitatively. For
instance, statistical data is unavailable withrespect to IP-infringing goods that individuals
who enter Japan attempt to bring into Japan in
their personal baggage. Furthermore, the detailsof acts alleged as violating the Customs Law or IP
laws in criminal or other proceedings, the legal
provisions applicable to such acts, and thenumber of cases brought to prosecutors are notspecified in available statistical data; additional
measures should be implemented to specify suchinformation.
In the future, with respect to the issue of
how to regulate the importation, possession, andsale of counterfeit and pirated goods by
individuals, it is necessary to further investigate
actual cases, and consider possible measures
based on the broad understanding of the actual
impact of such acts on the Japanese industry.
Such understanding can be obtained by exploring
possible methods for grasping the actual
conditions of damage based on various available
statistical data with cooperation from theministries
andagencies
concerned
andconducting original surveys of markets andconsumer awareness.
2

Current measures relating to importation,possession, and sale of counterfeit andpirated goods by individualsThis section gave an overview of the existing
provisions of relevant legislations and the pastmeasures implemented to cope with damage
arising from the importation, possession, and saleof counterfeit and pirated goods by individuals.
More specifically, this section reviewed theexisting provisions under IP laws, including theTrademark Law and the Copyright Law, as well as
the Customs Law and basic notifications issued
thereon, and other customs-related legislations.
It also pointed out the need to develop guidelines
for transactions on the Internet in accordancewith the Law for Special Commercial
Transactions and the Law for Limited Liability forInternet Service Providers, and to requireconsumers to give due consideration to proper
protection of intellectual property as their duty
under the Basic Consumer Law.

● 89 ●IIP Bulletin 2006

Next, the study report stressed the fact thatthe present issue was addressed in theIntellectual Property Strategic Programs 2004
and 2005, and clearly described, in statistical data,
enforcement measures implemented so far,including anti-counterfeiting/piracy campaigns,
customs controls and proceedings by the policeand prosecutors, and efforts by the industrial
community to bring criminal charges and raise
consumers’ awareness. The report also discussed
the current measures implemented by the parties
concerned to cope with transactions ofcounterfeit and pirated goods on the Internet,
such as the public and private sectors establishinga joint committee, the government disclosing
information on actual infringement cases, theindustrial community requiring Internet service
providers to remove infringing goods from theirwebsites, and the providers making voluntary
efforts to eliminate such goods.
According to this discussion, it is recognizedthat the private and public sectors have been
making joint efforts to cope with the importation,possession, and sale of counterfeit and pirated
goods by individuals, and such efforts havebrought about favorable effects to a considerable
extent, such as a reduction in the counterfeit
goods on major auction websites. It goes without
saying that such enforcement measures within
the existing legal frameworks should be further
strengthened. The objective of this study is todetermine whether or not the existing legal
frameworks are adequate for enforcement.

Ⅲ Current
Regulations
Japanese Legislations

underThis section reviewed the results of thesurvey of national legislations relating to theregulations on the importation, possession,
assignment, and various other acts involving
goods other than IP-infringing goods, regulations
on IP-infringing goods and other importprohibited goods, and deterrent measures otherthan criminal penalties. It also presented thepersonal view on this issue stated by Lawyer Ms.
Naho Ebata who took charge of this survey.
1

Survey of the regulations on importation,possession, and sale of goods by
individuals

In an effort to examine the need to legally
regulate the importation, possession, and sale ofcounterfeit and pirated goods by individuals, we

IIP Bulletin 2006

conducted a survey to investigate how Japaneselegislations regulate the importation, possession,and sale of goods other than counterfeit andpirated goods, which are deeply involved in the
lives of Japanese citizens.
Regarding the requirement relating to the
purpose, Japanese legislations generally regulate
importation and possession only if such acts arecommitted for specific purposes, e.g. sale,
distribution, provision, use. On the other hand,
importation and possession of drugs such as
stimulants, narcotics, and cannabis, and of
firearms shall be subject to penal provisions
irrespective of the purpose of committing the act,with limited exceptions.
Such acts are subject to more severe
penalties in cases where they are committed forthe purpose of making profits or in the course of
trade.
There is no special relevance between
regulations on importation and regulations on
possession; there are three types of goods in thiscontext, namely, those only subject to importation
regulations, those only subject to possession
regulations, and those subject to both regulations.
Goods only subject to importation regulations
include explosives, forged or altered coins, bills,
banknotes or securities, and goods infringing
patent rights, utility model rights, and design
rights. Goods only subject to possession
regulations
include
Molotov
cocktails,
radioisotopes, and antipersonnel mines. Goods
subject to both regulations include drugs such as
stimulants, narcotics, and cannabis, bombs, sarin
and other toxic substances, forged credit cards,
child pornography, and goods infringing
trademark rights and copyrights or neighboringrights.
Penalties imposed on importation are more
severe than those imposed on sale, purchase, andpossession.
2

Relationships between import-prohibited
goods under the Customs Tariff Law
and those under relevant governing
legislations

We made a comparison between importprohibited goods under the Customs Tariff Law,
which include IP-infringing goods, and importprohibited goods under relevant governing
legislations such as the Trademark Law and the
Copyright Law, in terms of the scope of
regulations and the penal provisions.
Books, pictures, sculptures and other goods● 90 ●

that are harmful to public order or good morals,
which are specified in Article 21(1)(vii) of the
Customs Tariff Law as import-prohibited goods,
are regarded as corresponding to obscenities
stipulated in Article 175 of the Penal Code. Under
this provision, a person who distributes, sells,
possesses for sale, and publicly displays obscenematerials shall be published, but importation is
excluded from punishment. Similarly, documents
and pictures set out in Article 4(1)(i) of theSubversive Activities Prevention Law, which isalso equivalent to Article 21(1)(vii) of the
Customs Tariff Law, provides for punishment for
printing, distribution, and public display ofprohibited materials but also excludes importationfrom punishment. The scope of import-prohibited
goods under the Customs Tariff Law isdetermined by giving consideration to thefollowing facts: (1) other legislations prohibit
importation or possession of the goods, applying
penalties that are similar to those applicable toimport-prohibited goods under the Customs Law;
(2) national consensus has been reached thatprohibition of importation of the goods isparticularly necessary and important from theperspective of protecting public interests, such as
ensuring the health and safety of the citizens andmaintaining public order and economic order, andthat Customs are expected to actively implement
border controls and enforce prohibition ofimportation; (3) the goods actually coming into
Japan cause or are likely to cause significant harm
to public interests.
With respect to import-prohibited goods
listed in Item 3 (bombs), Item 5 (forged coins,etc.), Item 7, Item 8 (child pornography), andItem 10 (goods constituting acts of unfair
competition), the relevant governing legislations
prohibit importation only if it is committed forspecific purposes. However, whether or notparticular goods fall under the scope ofimport-prohibited goods under the Customs Tariff
Law is determined irrespective of suchrequirement relating to the purpose. Furthermore,
the relevant governing legislations apply
penalties only where importation is committed
intentionally, whereas under the Customs Tariff
Law, whether importation is committed
intentionally or negligently does not matter.
There is no substantive requirement for
determining whether or not particular goods fallunder the scope of import-prohibited goods under
the Customs Tariff Law because, since there canbe no official procedure for importing importprohibited goods, a person who intends to importsuch goods generally attempt to import them inconcealment, and such intention of importingprohibited goods by making arrangements forconcealment
satisfies
thesubstantive
requirements under the relevant governing
legislations. However, where importation of
goods set out in Item 9, IP-infringing goods, is notcommitted “in the course of trade” or “for the
purpose of distribution,” the importation dose notconstitute infringement of IP rights, andtherefore such goods do not fall under the scopeof import-prohibited goods.
Between the penalties under Article 109(1)and (2) of the Customs Law, which are applicableto the importation of import-prohibited goodsprescribed in Article 21(1) of the Customs Tariff
Law, and the penalties under the relevant
governing legislations, there is no relevance but
difference in terms of the severity of the penalty.
3

Current deterrent measures other thancriminal penalties

We reviewed a basic framework andprovisions for deterrent measures other thancriminal penalties, or administrative penalties,
such as civil fine, other economic penalty, andconfiscation. Although confiscation is prescribedin some of the existing legislations, it is not
actually executed with the exception of execution
by the Director-General of Customs under the
Customs Tariff Law. For instance, under the Law
for Preventing Minors from Drinking and the Law
for Preventing Minors from Smoking, confiscation
cannot be executed because the confiscation
procedure and the person authorized to confiscate
are not specified by law. Also due to the lack ofprocedural provisions, confiscation by the
Minister of Foreign Affairs under the Passport
Law has never been executed.
4Comparison
betweengoods and other goods

IP-infringing

IP-infringing goods, when compared withother goods, have the following characteristics: it
is difficult to determine whether or not particular
goods fall under the scope of IP-infringing goods
due to the difficulty in determining the existenceof infringement; such goods once regarded as
IP-infringing goods may be excluded from thescope of infringing goods upon invalidation of the
IP rights concerned; IP-infringing goods
themselves are not dangerous or harmful to aperson’s body or property or to public safety;● 91 ●IIP Bulletin 2006

IP-infringementiscommitted
byusing
information against the right holder’s will,
without depriving him of any tangible property.
By comparing the penalty on IP infringement(imprisonment with labor for not more than five
years or a fine of not more than five million yen)with penalties on importation or possession ofother goods under the relevant governing
legislations,focusing
on
the
level
of
imprisonment with labor, we found that thepenalty on IP infringement is equal to the penalty
on the importation, exportation, and manufactureof psychotropics for non-profit purpose, and also
equal to the penalty on possession of forgedcredit cards “for the purpose of causing anotherto make mistakes in the administration of affairs
relating to property.”
Based on the survey results shown above,
Ms. Ebata proposed the idea of introducing a new
system in order to cope with the importation,possession, and sale of counterfeit and pirated
goods by individuals. Importation and possession
by individuals should be regulated not by legallyprohibiting such acts but by introducing a
confiscation system that is similar to the systemfor confiscating a third party’s property, whereby
counterfeit and pirated goods that are strongly
suspected of having infringed trademark rights or
copyrights in foreign countries and are likely tocause infringements in Japan if imported “in thecourse of trade” or “for the purpose of
distribution,” should be confiscated upon
importation in cases where the importer has had
a malicious intention when acquiring the goods.
Procedure under the new system should bedesigned to be as simple as possible, by referringto the recognition procedure under Article 21(4)of the Customs Tariff Law. The importer should
be notified of why his import goods are subject toconfiscation, and given the opportunity to excuse
or defend himself prior to confiscation. The
discussion at the committee, which also
addressed this proposal, is reviewed in Chapter V
below.

Ⅳ

Current
Regulationson
Importation, Possession, Saleof Counterfeit and Pirated
Goods in Europe and the UnitedStatesThis section provided the results of an
overseas survey conducted with cooperation fromoverseas law firms, as well as surveys of available
literature and references, regarding actual damage

IIP Bulletin 2006

arising from importation and other acts involving
counterfeit and pirated goods committed byindividuals and the countermeasures against suchdamage in European countries and the UnitedStates. The overseas survey targeted the EU itself
and its member countries, i.e. France, Italy,
Germany, and the United Kingdom, as well as theUnited States. Through the survey, weinvestigated the actual conditions of damage
arising from counterfeit and pirated goods, andexamined legislations, court decisions andacademic theories, and the enforcement status andpolicy measures in terms of prohibition of specificacts involving counterfeit and pirated goods andexceptions thereto. The targeted acts are: (a)assigning (selling), purchasing, giving as a gift; (b)possessing, carrying, delivering or receiving,
conveying; (c) exporting, importing; (d) lending,borrowing.
The definition of counterfeit and pirated
goods differs between the treaties or legislationsin the targeted countries and the Japaneselegislations. For this reason, we first compared
the definitions, and then discussed the actual
damage and the countermeasures in the EU andits member countries as well as in the UnitedStates. In particular, we conducted detailed
examinations of France and Italy, because it has
been pointed out that these countries impose
criminaloradministrative
penaltiesonimportation and other acts involving counterfeit
and pirated goods if they satisfy certain
requirements, irrespective of whether such acts
are committed by individuals.
In European countries and the United States,
it is recognized that the nature of counterfeit andpirated goods is changing, causing considerable
damage to industry and economy, and based onsuch recognition, the private and public sectors
are making efforts to develop action plans and tostrengthen measures to cope with such damage.
Under such circumstances, some countries
currently discuss how to treat the importation,possession, and sale of counterfeit and pirated
goods by individuals, which have been excluded
from the scope of IP-infringing acts if conductedby non-profit parties, and consider implementing
legislative measures based on such discussion.
For instance, all EU legislations relating tothis issue, from rules for harmonization ofsubstantive laws on intellectual property, such as
the EU Trademark Law Directive (89/104/EEC)
and Information Society Directive (2001/29/EC),
to rules for enforcement of intellectual property
rights, such as EU Customs Regulation● 92 ●

(1383/2003)
andEnforcement
Directive(2004/48/EC) and the Proposal of the European
Commission for a Directive on criminal measures
aimed at ensuring the enforcement of intellectual
property rights, have maintained the principlethat an act subject to prohibition must be
committed for commercial purpose or in thecourse of trade. National legislations of themember countries adopt the concepts under the
EU Trademark Law Directive and Information
Society Directive, such as “use of a trademark,”“act committed in the course of trade,” and“reproduction of a medium for private use ofnon-commercial nature that is committed on thecondition that the right holder should be justlycompensated.” Progress has been made in theinterpretation of these national laws through theaccumulation of academic theories and court
decisions both by the EU as a whole and byindividual member countries. The EU is also
working on harmonization of civil and criminal
procedures relating to IP infringement cases, so
as to impose uniform sanctions on IP
infringement while securing due process.
Furthermore, with respect to the rules directly
applicable to the EU member countries such as
the EU Customs Regulations, the European
Commission will clarify the requirements
regarding IP-infringing goods in travelers’personal baggage and introducing a simplified
procedure for abandoning infringing goods atcustoms,
therebyalso
harmonizing
theprocedures to be applicable to acts involving
counterfeit and pirated goods committed byindividuals.
In the EU member countries affected bysuch trends across Europe and also in the UnitedStates, progress has been made in theinterpretation of the scope of protection underintellectual property rights. There is a tendency
to aim to clarify the “in the course of trade”
requirement under the Trademark Law and other
IP laws (ECJ decisions, the trademark law andcourt decisions in Germany, etc.), which is also
applicable to transactions on the Internet, and thecategorization or requirement for acts to be
exempted from liability because of private use
exception under the copyright law (court
decisions in France, the copyright law and court
decisions in Italy, the copyright law and court
decisions in Germany, and court decisions in theUK). The definition of “trafficking” of counterfeit
goods under Section 2320 of the US Criminal Law(18 U.S.C.) also goes along with this tendency.
Attempt is also being made to clarify therequirements for counterfeit and pirated goods
subject to regulations in accordance with
Customs directives (EU Customs Regulations andrevised directives of the member countries, andUS Customs directives 19 CFR 148-55).
Penalties and sanctions on acts involving
counterfeit and pirated goods have beentightened. Criminal penalties are imposed on acts
involving counterfeit and pirated goods under IP
laws, irrespective of whether such acts arecommitted for the purpose of making profits(France, and the US if the perpetrator
intentionally commits such an act); administrative
penalties are imposed on the purchase andpossession of counterfeit and pirated goods underlaws other than IP laws (Italy); penal provisions
for stolen goods are applicable to acts involving
counterfeit and pirated goods (Italy); heavier
penalties may be imposed under the criminal law(Italy, US, etc.)
It should be noted that unlike Japan,
counterfeit goods and pirated goods are
distinguished from IP-infringing goods in generalin European countries and the United States.
This may be the underlying cause of the changes
in the legal systems in these countries.
The above-mentioned legislative measuresin the major countries are based on the legal
study aimed at reviewing the limit of rights underIP laws and other related laws in response to thecurrent situation where while it becomes easier
to imitate or reproduce products with theadvancement of technology and distribution
methods becoming more global, acts committed
by individuals may affect not only the private
domain but also the industrial domain. Japan
should not ignore such overseas trends, andshould examine the current status of enforcement,
the positive and negative effects of the measures
to clarify various concepts under IP laws and thescope of goods subject to customs controls, and totighten penalties and sanctions on acts involving
counterfeit and pirated goods. Examination
should also be made in regard to preventive
measures implemented in these countries, suchas measures to raise consumer awareness ofproblems arising from counterfeit and pirated
goods, although these measures were notaddressed in this study report.
The legislative measures implemented inforeign countries and the effects thereof will, if
examined together with other measures, provide
us with useful references for considering
appropriate legislative measures to cope with acts
involving counterfeit and pirated goods in Japan.

● 93 ●IIP Bulletin 2006

Ⅴ Necessity and Possibility of
Measures against Importation,
Possession,
and
Sale
of
Counterfeit and Pirated Goods
by Individuals
The study committee, based on theunderstanding of the actual conditions of damage
arising from the importation, possession, and saleof counterfeit and pirated goods by individuals
and the countermeasures against such damage,the current regulations on goods under national
legislations in general, and overseas legal
systems relating to the importation, possession,and sale of counterfeit and pirated goods by
individuals, discussed the main issue of “whether
it is possible to regulate such acts bystrengthening enforcement under the existing
legal systems or if it is necessary to implement
legislative measures.”
Since various opinions were argued at thecommittee, both the pros and cons are outlined inthis study report. Ideas proposed at thecommittee include the following: develop
customs guidelines with the objective ofclarifying the “in the course of trade”
requirement; maintain the “in the course of
trade” requirement under the industrial property
laws, and regulate importation, possession, saleof counterfeit and pirated goods by individuals byapplying administrative confiscation instead of
applying criminal penalties, which are too severe
to be imposed on individuals; change the existing
industrial property laws, e.g. changing the placeof the provision on the “in the course of trade”
requirement under Article 2(1) of the Trademark
Law, and redefining an appropriate scope ofprotection under the Copyright Law.
In order to draw a conclusion on what
measures should be implemented in the future,
we should further discuss this issue with the aim
to reach a consensus based on the various
opinions and ideas argued at the committee.

Ⅵ ClosingThis section points out problems found in
this study.
Although it is difficult at present to identify
the amount of damage arising from importation ofcounterfeit and pirated goods by individuals, we
can at least confirm, from the available data
provided by the industrial community, that acts
committed by parties disguised as individuals
cause damage to some industries. In order to

IIP Bulletin 2006

cope with such damage, various measures arebeing implemented by the parties concerned,
includingjoint
anti-counterfeiting/piracy
campaigns by the ministries and agencies
concerned, customs controls, domestic control by
the police, and efforts by the industrial
community to eliminate counterfeit and pirated
goods from transactions on the Internet and otherphases of distribution. However, there is anargument that the current measures are
insufficient.
For the future, it is necessary to continue
efforts to grasp, in quantity and quality, thesituation in individual stages of the process wherecounterfeit and pirated goods are manufactured inforeign countries, and then they are imported andmarketed in Japan, in which importation andpossession of such goods by individuals take place.
It is then necessary to identify the causes ofdamage and implement legislative and policy
measures to eliminate such causes, with the aim
to ensure the effectiveness of such measureswhile gaining public understanding. To this end,
we should, first of all, improve the awareness of
citizens who might pick up counterfeit andpirated goods and increase their knowledge of IP
rights, as without this, it is impossible to achieve
the fundamental goal of eradicating consumer
demand for counterfeit and pirated goods inJapan.
It is desirable to, while developing proper
understanding of counterfeit and pirated goods
among the whole public, consider theappropriateness and consistency of legislative andpolicy measures to be implemented in individual
stages, including the ideas proposed at thecommittee, i.e. clarifying the requirement forcustoms controls on the importation ofcounterfeit and pirated goods committed byparties disguised as individuals, and introducing
an administrative confiscation system forpossession of such goods by individuals in Japan.
When considering legislative measures, weshould properly understand that while it becomeseasier to imitate or reproduce products with theadvancement of technology and distribution
methods becoming more global, importation ofcounterfeit and pirated goods committed byindividuals may affect not only the private domain
but also the industrial domain. We should also
give consideration to satisfying various
requirements under the existing Japaneselegislations, such as guaranteeing property rightand ensuring due process, while achieving abalance with other regulatory measures. Through● 94 ●

these efforts, it is important to limit the influenceof such measures on individuals within an
appropriate and reasonable extent.
In this context, with damage arising from theimportation of counterfeit and pirated goods byparties disguised as individuals, IP laws should be
reviewed in terms of the following: the “in thecourse of trade” requirement under the
Trademark Law and other industrial property
laws, or the requirement relating to the purposeof distribution under the Copyright Law, private
use exception under the Copyright Law, and an
ideal framework of copyright protection for works
that are currently marketed in both tangible andintangible forms. The committee members
discussed all these issues but had difficulty inreaching a consensus. Further study is required
regarding the relationship between legal interest
that might be infringed due to the importation ofcounterfeit and pirated goods by individuals andlegal interest to be protected under IP laws.
The information on the actual damage arisingfrom the importation of counterfeit and pirated
goods by individuals in foreign countries as wellas the legislative and other measures against
such damage and the effects thereof will be
helpful for our study in the future. In this study,
we examined the trends in Europe and the UnitedStates. In order to correctly understand thelegislative measures implemented in France and
Italy and the effects thereof, it is necessary tocontinue collecting and analyzing information,
because it has not been long since thesemeasures were put into force. Considering thatcounterfeiting and piracy is an international issue,
and its resolution is desired on a global scale, it isobvious that Japan should design measures thatare in harmony with overseas measures, and to
this end, we should continue paying attention tointernational trends.
There are many problems to be consideredwhen seeking appropriate measures to cope with
the importation, possession, and sale ofcounterfeit and pirated goods by individuals. In
this study, we investigated the actual cases ofdamage and the latest legislative and policy
measures implemented in major countries fromall assumable perspectives and based on all
information available at present, and discussed
the present issue while aiming to maintainbalance within the Japanese legal systems as awhole. We hope that based on the discussion
results, this issue will be understood anddiscussed more widely so that both goals will beachieved equally to develop the Japanese industry

through appropriate protection and utilization of
intellectual property and to improve the standardsof wholesome, economic, and cultured living forJapanese citizens.

● 95 ●(Researcher: Akiko KATO)

IIP Bulletin 2006