22 Industrial Property Rights Policy in Modern Japan:
An Analysis of the Political Process Involving Japan, the UK
and the USA in Relation to Membership of the Paris
Convention（*）
Research Fellow: Satoshi Tsuruoka
It has been said that after the process of Westernization began during the Meiji period, Japan aimed toswiftly achieve modernization, and its proactive introduction of superior Western science and technology
promoted domestic industrial development. However, little attention has been paid to how Japan subsequently
sought to promote domestic industrial development and establish business overseas. In particular, with its
accession to the Paris Convention in 1899, Japan began to participate in international competition in earnest,
but for the most part, the detailed sequence of events leading up to this has still not been clarified. Accordingly,
through the political process surrounding Japan's accession to the Paris Convention, this study seeks to clarify
how modern Japan sought to promote domestic industrial development and the establishment of businessoverseas, amidst an international community in which intense competition was unfolding, thereby providing amodel case for reference when formulating industrial property rights systems in the future. In this research, there
will be a particular focus on diplomatic negotiations between Japan and the UK, and diplomatic correspondence
from the UK will be used as an additional reference for the first time.

I

Introductionof events leading up to Japan's accession to theParis Convention and the Berne Convention in
1899, with a particular focus on negotiations with
the UK—which at that time was said to be asuperpower—concerning
treatyrevisions.
Furthermore, by including and clarifying revisionnegotiations with the USA, which had
demonstrated a friendly attitude, this study
clarifies how modern Japan sought to achieve abalance between international cooperation and the
pursuit of its national interests, and what kind ofindustrial property rights policy Japan sought todeploy amidst an international community in which
intense competition was unfolding, thereby
providing an example that can form a basis for thecreation of industrial property rights systems in
the future.

Hitherto, there has been little clarification of
the detailed sequence of events leading up to
Japan's accession to the Paris Convention for theProtection of Industrial Property and the Berne
Convention for the Protection of Literary andArtistic Works in 1899, which was the first timethat it had participated in an internationalframework focused on the protection of intellectual
property rights. This is because the subject spans
the realms of political science, law, political history,
legal history, and technological history, and it isdifficult to conduct research that draws all thesefields together.
However, accession to the Paris Convention
and the Berne Convention was exceedingly
important, not only because it was the first timethat Japan had participated in international
competition, but also because of their connection
to what was called naichi zakkyo [under which
restrictions on the areas in which foreign nationals
could live, travel and do business in Japan wereabolished], which began within Japan the sameyear.
Accordingly, this study examines the sequence

Ⅱ The Raising of Problems
Treaty Revision Negotiations
1inRevision Negotiations Undertaken by
Foreign Minister Inoue(*) This is an English translation of the summary of the report published under the Industrial Property Research

Promotion Project FY2011 entrusted by the Japan Patent Office. IIP is entirely responsible for any errors in expression
or description of the translation. When any ambiguity is found in the English translation, the original Japanese text shallbe prevailing.
●

IIP Bulletin 2012 Vol.21

1 ●(1) The Inoue proposal and preliminary talks
on treaty revisions
In September 1879, Kaoru Inoue wasappointed Lord of Foreign Affairs. The following
year, in May 1880, Inoue formulated a draft
revision of treaty, but this did not contain any
provisions concerning industrial property rights.
Subsequently, in January 1882, preliminary
talks concerning treaty revisions began in Tokyo.
At the 9th round of preliminary talks, in April thatyear, Inoue made the "naichi kaihou declaration", inwhich he stated that he was prepared to open up
Japan's interior on the condition that foreign
nationals were subject to Japanese law.
In response to this, at the 15th round of
preliminary talks, in June the same year, theFrench delegate Joseph Adam Sienkiewicz
submitted a proposal to establish provisions
concerning industrial property rights and copyrightin the draft revision. The UK also assented to thisand the British submitted a request that industrial
property rights be taken up in the preliminary
talks.
In response to this, Inoue indicated his
willingness to discuss the matter of industrial
property rights separately from the revisionnegotiations.

On the other hand, in July that year, France
requested the prompt formulation of a special
agreement on industrial property rights.
In response to this, in August that year, Inoue
clearly stated his agreement with the UK's opinion,
but with regard to the timing of the negotiations,
he indicated his preference to commence themafter concluding the treaty revision negotiations.
However, France strongly objected to this, so
the following year, in April 1885, Inoue consented
to add a provision concerning industrial property
rights to the draft treaty revision.
Whilst there were such exchanges between
Japan and the world powers regarding future
methods of negotiation concerning industrial
property rights, from 1881, the world powers
actively encouraged Japan to join the Paris
Convention.
However, Japan rejected their inducements,
stating that it could not join the convention
because the provisions of the Paris Convention
conflicted with those of the Patent Monopoly Act.
Furthermore, the world powers inquired
whether Japan's laws on industrial property rights
granted rights to foreign nationals, but Japan
responded that it could not grant rights to foreign
nationals.

(2) The period after the preliminary talks
until the official talks began
The preliminary talks concluded, but
exchanges took place between Japan and the world
powers concerning the policy on futurenegotiations relating to industrial property rights.
Firstly, in December 1883, British Foreign
Secretary Granville George Leveson-Gower, 2ndEarl Granville, requested that negotiations
concerning industrial property rights be resumed
promptly, and instructed Francis Plunkett, the new
British Minister to Japan, to swiftly resume
negotiations concerning industrial property rights.
In response to this, in April 1884, Minister
Plunkett submitted a memorandum to Japan,
requesting the prompt resumption of negotiations
concerning industrial property rights. However, at
this point, there had been no request to discuss thematter in negotiations concerning treaty revisions,nor was there a request concerning accession to
the Paris Convention or the Berne Convention, as
the memorandum indicated a preference to discuss
the matter bilaterally, rather than multilaterally.
Moreover, in April the same year, Germany
also instructed the German Minister to Japan to
discuss industrial property rights separately fromthe treaty revision negotiations.

(3) Treaty revision conference
In May 1886, the treaty revision conference
began in Tokyo. During the first session of theconference, Inoue submitted a draft revision, but itprescribednational
treatment
regarding
trademarks alone and did not explicitly mention
accession to the Paris Convention and the Berne
Convention. Accordingly, this provision was
modified.
As a result, when the 25th session of theconference was held the following year, in April
1887, a draft revision was submitted thatprescribed national treatment in relation to patents,
trademarks and designs.
In addition, in the same month, it was decided
to establish a committee to discuss mattersrelating to commerce; at a meeting of thiscommittee, Plunkett disclosed that he would
request Japan's accession to the Paris Convention
and the Berne Convention. Moreover, France also
requested that a provision regarding the Paris
Convention be incorporated into the draft.
The other world powers agreed to this, as it
would make the protection more reliable, but Japan
opposed the move, as it feared that the protection
would be extended to the names of shops, inaddition to patents, trademarks and designs;●

2 ●IIP Bulletin 2012 Vol.21

Germany also sided with Japan regarding this.
Subsequent committee meetings were held,
but the British request was not implemented. The
reason for this was that mutual protection of
copyright was not prescribed in the treaty between
Japan and the USA that had already been signed;
accordingly, due to the most-favored nation status
in their relationship, it was not possible toincorporate Japan's accession to the Paris
Convention and the Berne Convention into thedraft revision.
As a result, a modified draft was submitted inJuly that year, but although it prescribed national
treatment regarding patents, trademarks anddesigns, it did not explicitly mention accession to
the Paris Convention and the Berne Convention.
Consequently, the UK merely instructed Plunkett
to encourage Japan to join the Paris Convention
and the Berne Convention.
However, Inoue subsequently began to be
exposed to severe criticism regarding the draft
revision, both from within the Cabinet and in thenewspapers, so at the end of July that year, he wascompelled to notify the world powers that therevision negotiations were postponed indefinitely,and he resigned as Foreign Minister in September
the same year.
2

regard to industrial property rights and the sameprovision as in the aforementioned treaty between
Japan and the USA was established. As a result, theJapan-Germany Treaty of Peace, Amity, Commerceand Navigation was signed in June the same year.
(2) The trademark forgery incident as apreliminary skirmish in the negotiations
with the UK
At the end of 1887, a trademark forgery
incident occurred between Japan and the UK In
response to this, Power Henry le Poer Trench, theBritish chargé d'affaires requested that Japan takesteps to deal with this promptly, but in June 1888,
Okuma responded that intervening in a particularcase based on a request by the UK and putting astop to an infringement by a Japanese national
would be extra-legal, and that he could notintervene in this particular case because it was notconsidered to be an object of immediate and urgent
necessity. Moreover, with regard to an inquiry from
Trench concerning Japan's accession to the Paris
Convention, Okuma expressly stated that Japanwas declining this request.
In response to this, Trench informed thegovernment in the UK that it was obvious thatJapan had decided not to intervene in similar casesof infringement until the question of the abolitionof the foreign settlements had been resolved, andadvised that it should be even more cautious withregard to Okuma, as it seemed that Japan had
decided to severely restrict the rights of foreign
nationals.
Ultimately, although the British company that
had suffered the infringement requested that the
British Government apply further pressure in
regard to this stance on the part of Okuma, the UK
remained silent on this matter in discussions withJapan.

Revision Negotiations Undertaken by
Foreign Minister Okuma(1) The Okuma proposal and negotiations
with the USA and Germany
On February 1, 1888, Shigenobu Okuma was
appointed Foreign Minister. After Okuma
formulated a draft revision, negotiationscommenced in November and December of thatyear with the US and Germany, which had
demonstrated a friendly attitude for some time.
With regard to industrial property rights, this draft
was the same as the modified draft submitted at
the treaty revision conference in July 1887.
Negotiations with the USA progressedsmoothly and the Japan-US Treaty of Peace, Amity,
Commerce and Navigation was signed in February
1889, without any major amendments relating toindustrial property rights. In other words, national
treatment was prescribed in regard to patents,
trademarks and designs, but there were no
stipulations regarding accession to the Paris
Convention or the Berne Convention.
With regard to negotiations with Germany,
there were fierce negotiations around such mattersas the interpretation of the most-favored nation
clause, but no major modifications were made in(3) Negotiations with the UK
Negotiations with the UK began in December
1888. When the UK received the draft revisionfrom Okuma the following year, at the end ofJanuary 1889, it began to study the proposals
forthwith.
Firstly, Sir John Henry Gibbs Bergne,
Superintendent of the Treaty Department at theForeign Office, asserted that Japan should be madeto join the Paris Convention and the Berne
Convention, because the issue of industrial
property rights in Japan was becoming serious andprogressively acquiring a greater importance.
Moreover, just as Bergne had, John Harington
Gubbins, who was the secretary to the British●

IIP Bulletin 2012 Vol.21

3 ●legation, pointed out that the damage suffered by
British interests due to the lack of protection forindustrial property rights in Japan had grown,
particularly in recent years. He asserted that,while Japan's accession to the Paris Convention
and the Berne Convention would certainly not be abad thing, the UK must be prepared for Okuma tocontinue to insist on Japan's accession to theseconventions taking place simultaneously with theabolition of the foreign settlements, and also to cite
the fact that rights had not been granted to foreign
nationals in the interior of Japan as the excuse forrefusing to put a stop to infringements oftrademarks and copyright by Japanese nationals, asin the recent incident.
This stance on the part of Okuma wasperceived as a threat to the UK, and it made the
British increasingly aware of the importance of theissue of industrial property rights.
However, negotiations with the UK
subsequently stagnated for some time, due to theconflict between Japan and the UK surrounding theinterpretation of the most-favored nation clause,
but after the Japan-Germany Treaty of Peace,
Amity, Commerce and Navigation was signed inJune 1889, the UK formulated a draft response to
Okuma's proposal the same month. In this, anamendment was made concerning industrial
property rights, to make it conform to British
patent law, but no other major modifications were
made, and it did not contain any provisions
concerning national treatment for patents,
trademarks and designs, nor did it contain any
reference to accession to the Paris Convention orBerne Convention. This was because the Foreign
Secretary, the 3rd Marquess of Salisbury, statedthat the UK "would be glad" if Japan were to accept
accession to the Paris Convention and the Berne
Convention, so it went no further than being a
hopeful request.
On the other hand, Hugh Fraser demonstrated
the recognition that the problem of industrial
property rights in Japan was a question of special
importance for the UK, and that if Japan joined theParis Convention and the Berne Convention, it
would make a major contribution to the UK's tradeand industry.
Further negotiations subsequently took place
between Japan and the UK, but although slight
modifications were made in regard to industrial
property rights, there were no major amendments
and an agreement was reached on the majority ofmatters.
Thus, after the British side received Okuma's
draft revision, great importance came to be placedon the issue of industrial property rights in Japan,
as reflected in Fraser's assertion that the problem
of intellectual property rights in Japan was a"question of special importance". However,ultimately, the UK did not demand that Japan join
the Paris Convention and the Berne Convention.
As stated above, in addition to the fact that thisissue was a desirable condition, the reasons behind
this include the fact that it was difficult for Fraser
to extract any further concessions from Japan andother world powers had either already concluded
the signing of their revised treaties with Japan, orwere moving forward with negotiations aimed atsigning such treaties, so he thought that the UK
should also sign the revised treaty promptly.
Thus, agreement was broadly reached
between Japan and the UK regarding the otherprovisions as well, but negotiations came to a halt
in October 1889, as a result of an assassination
attempt on Okuma.

Ⅲ The Development of Points ofContention in Treaty Revision
Negotiations
1

Revision Negotiations Undertaken by
Foreign Minister Aoki

(1) The formulation of the "Aoki memorandum"The Yamagata Cabinet was inaugurated on
December 24, 1889 and Shuzo Aoki was appointed
as Foreign Minister. In February 1890, Aoki drew
up a memorandum concerning the policy onnegotiations relating to the treaty revision. No
modifications were made in this regarding
industrial property rights.
(2) Dispatch of the British proposal
At the same time, whilst Aoki was stilldrawing up the aforementioned memorandum,
major developments were occurring on the British
side. More specifically, in January 1890, Fraser
made an important proposal. As well as
encouraging wide-ranging concessions on the partof the UK, such as abandoning the demand for theappointment of foreign judges, he recommended
that one of the policies for the negotiations shouldbe the demand that Japan join the Paris Convention
and the Berne Convention.
Fraser's proposal was broadly accepted by the
British Government, so in June 1890, a draft was
drawn up that explicitly prescribed Japan's
accession to the Paris Convention and the Berne
Convention before the abolition of consularjurisdiction. The UK then sought to conduct●

4 ●IIP Bulletin 2012 Vol.21

negotiations based on this draft, on which the
British officials had pinned such great hopes.

conventions had begun to be discussed in earnest,
with Kaoru Inoue raising accession to the Paris
Convention and the Berne Convention as a point ofcontention.
(2) Deliberations by the Treaty Revision
Proposal Advisory Committee
In March 1892, after Enomoto's draft revision
was submitted to the Cabinet, discussions within
the Cabinet regarding revision negotiations
resumed. As a result, an advisory committee wasestablished to examine the draft and the firstmeeting of that committee was held in April thatyear. In addition, the question of accession to theParis Convention and the Berne Convention began
to be discussed in earnest by the committee, with
Chairman of the Privy Council Hirobumi Ito statingthat a decision must be made regarding this.
However, in August 1892, before the second
committee meeting was held, the Matsukata
Cabinet collapsed, so Enomoto resigned as Foreign
Minister.

(3) The formulation of Aoki's modified
proposalAoki, who had received the draft from the UK,
agreed to conduct negotiations based on this draft,as it recognized Japan's demands, in the main. In
September 1890, based on the British draft, Aoki
formulated a modified draft that accepted accession
to the Paris Convention and the Berne Convention.
However, divergent opinions continued toemerge from within the Cabinet in regard to Aoki's
modified draft, and the Cabinet still had notreached a consensus by March the following year.
Consequently, in mid-March, without a Cabinet
decision, Aoki sent to Fraser a draft that he hadalready prepared, which had been modified once
more. This further-amended draft prescribednational treatment in regard to patents, trademarks,
designs and copyright, but the provision regarding
accession to the Paris Convention and the Berne
Convention had been deleted; regarding this, Aoki
indicated his continued preference to conclude abilateral agreement concerning industrial property
rights.
However, the Otsu incident occurred in May
that year and Aoki resigned to take responsibility
for this.
2

Ⅳ Decision on Accession to theParis Convention and Misgivingson the Part of the Western Powers
1

In August 1892, the second Ito Cabinet was
inaugurated and Munemitsu Mutsu was appointed
Foreign Minister. The following year, in July 1893,
Mutsu drew up a draft revision. In this draft,national treatment was prescribed regarding
patents, trademarks and designs, but nothing was
stipulated concerning accession to the Paris
Convention and the Berne Convention.
Preliminary negotiations subsequently took
place between Japan and the UK, but no majoramendments were made regarding industrial
property rights, other than amending the wording.

Industrial Property Rights in the Time of
Foreign Minister Enomoto(1) "Decision on the treaty revision"
In May 1891, Takeaki Enomoto was appointed
as Aoki's successor in the post of Foreign Minister.
Enomoto formulated a draft revision, in which
major changes could be seen concerning industrial
property rights. In this draft, industrial property
rights were raised as one of the points ofcontention in the revision negotiations. Morespecifically, in this draft, Enomoto stated that theprotection of industrial property rights was one of
the things currently being demanded in revisionnegotiations by the world powers and thataccession to the Paris Convention and the Berne
Convention could be described as the only
concession on the part of Japan. He asserted thatJapan should accept accession to these conventions,
as it was certainly not an excessive concession,compared with the benefits that Japan would gainfrom treaty revision.
Moreover, at the time of Enomoto's tenure as
Foreign Minister, the pros and cons of joining these2

Foreign Minister Mutsu's Negotiations
with the UK

Negotiations between Japan and the UK began
in London at the end of December 1893. After the
first day of talks, a memorandum was drawn up
between Japan and the UK, in which the UK clearlypresented its stance of requesting from Japan atleast in regard to trademarks and copyright.
After a brief hiatus, negotiations between
Japan and the UK resumed at the end of February
1894, and at the end of March that year, it wasagreed to hold a committee meeting in London.
As a result, the committee began to meet in●

IIP Bulletin 2012 Vol.21

The Start of the Mutsu Negotiations

5 ●April that year and at the first session Japan
rejected the request for its accession to the Paris
Convention and the Berne Convention, assertingthat it wished to conclude a bilateral convention.
At the second session, the UK inquired about
the British trademark forgery incident by Japanesenationals, and Japan admitted that the Japaneseparty was completely at fault.
At the third session, the UK suggested that it
was dissatisfied with Mutsu's draft revision
regarding industrial property rights.
At the fifth session, the UK formallyrequested that Japan join the Paris Convention and
the Berne Convention. In response to this, Japanreplied that it could not agree to the Berne
Convention.
In regard to this situation, Mutsu, who was inTokyo, made the decision to consent to the request
to join the Paris Convention and the Berne
Convention. One factor behind this was that Mutsu
had an ulterior motive for wishing to speed up theconclusion of the treaty, as Sino-Japanese relations
on the Korean Peninsula were becoming tense.
Amidst this situation, the sixth session of thecommittee took place. At this session, Japan
disclosed that it would accept accession to theParis Convention and the Berne Convention in
exchange for the deletion of the words "and to passlaws giving full effect to these Conventions". It was
explained that the reason for this was that passage
through the Diet was required in order to enact
laws. The UK accepted Japan's argument in regard
to this.
Thus, in July 1894, the Anglo-Japanese Treatyof Commerce and Navigation was signed; in this, aswell as prescribing national treatment for patents,
trademarks and designs, it was explicitly statedthat Japan would join the Paris Convention and theBerne Convention. With this, it was decided thatJapan would join these conventions.
3

there were no stipulations regarding the Paris
Convention and the Berne Convention. This was
because the treaty between Japan and the UK had
already prescribed accession to the Paris
Convention and the Berne Convention, so this was
not necessary in the subsequent treaty.
However, in regard to this, dissenting voices
began to emerge from the US Senate, arguing thatthe treaty should expressly provide for Japan's
accession to the Paris Convention and the Berne
Convention, in the same way as the treaty between
Japan and the UK.
Ultimately, after this amendment, theJapan-US Treaty of Commerce and Navigation was
ratified in February 1895, but the fact that this kindof dissent emerged from the USA was proof thatthe world powers harbored misgivings concerning
Japan's stance regarding the protection of industrial
property rights.
Furthermore, such misgivings increasingly
influenced actual business transactions andsubsequent revision negotiations with powers
other than the UK and the USA, particularly
negotiations with Germany.

V Preparations Within Japan for
Accession to the Paris Convention- - - CommencementofGranting
Rights to Foreign Nationals
In June 1896, after the decision was reachedon Japan's accession to the Paris Convention, theMinistry of Agriculture and Commerce requested
that the Ministry of Foreign Affairs conduct a study
regarding industrial property rights systems inother countries, and set the ball rolling for Japan tojoin the convention in question. As a result, on
November 20 that year, Ministry of Agriculture andCommerce Ordinance No.9, entitled "Matters
Relating to the Registration of Applications byForeign Residents and Foreign Nationals", waspromulgated, which at last granted rights to foreign
nationals as well.
Moreover, in September 1896, after thecollapse of the second Ito Cabinet, the second
Matsukata Cabinet was inaugurated. On November
12 the same year, a Committee for Preparations for
the Implementation of the Convention wasestablished, with Home Minister Sukenori
Kabayama serving as the Chairman and Privy
Councilor Fujimaro Tanaka as the Vice-Chairman.
This committee discussed matters pertaining to
the copyright and industrial property rights offoreign nationals, and, as a result, an interpretation
was considered that sought to reduce the scope of

Foreign Minister Mutsu's Negotiations
with the USA

Following the signing of the Anglo-Japanese
Treaty of Commerce and Navigation, negotiations
with the USA began in earnest, in September 1894.
Apart from the question of migrants, theseproceeded smoothly in general and the Japan-US
Treaty of Commerce and Navigation was signed in
November 1894. With regard to industrial property
rights, the treaty established similar provisions asin the treaty between Japan and the UK,
prescribing national treatment for patents,
trademarks and designs, but unlike the latter treaty,●

6 ●IIP Bulletin 2012 Vol.21

rights of foreign nationals in regard to industrial
property rights and copyright. Even after deciding
to join the Paris Convention and the Berne
Convention, Japan still rejected an open approachbased on granting rights to foreign nationals, aswell and swiftly making excellent foreigntechnology available within Japan, thereby
developing and strengthening domestic industry;
instead, it sought to maintain its inward-looking
state, trying to protect domestic industry by
excluding foreign nationals.

Fourthly, one can see that throughout thenegotiations concerning accession to the Paris
Convention and the Berne Convention, theWestern powers were forming the impression thatJapan was somehow "sly", as it was rapidly
developing in technical strength and diplomatic
power, but at the same time was careless about theprotection of intellectual property rights. As aresult, this impression influenced their diplomacy
and business transactions.

Ⅳ Conclusion
From the sequence of events described above,
the following observations can be made.
Firstly, Japan did not actively seek to join the
Paris Convention and the Berne Convention. In
other words, Japan did not begin to participate ininternational competition in a well-prepared state,with future overseas business expansion in mind.
Consequently, after the decision to join theseconventions, Japan was swiftly compelled to adopt
a response predicated on defense from othercountries.
Secondly, despite the fact that the possibilityof opening up the country's interior had been
mentioned at an early stage, throughout thenegotiations concerning accession to the Paris
Convention and the Berne Convention, there wasno change in Japan's closed attitude to industrial
property rights and copyright—the desire toprotect domestic industry by excluding foreigncountries—towards a more open approach, focusedon developing and strengthening domestic industry
by swiftly making excellent foreign technology
available within Japan and, as a result, seeking topromote overseas business expansion by domestic
industry.
Thirdly, for Japan, the decision on its accession
to the Paris Convention and the Berne Convention
through treaty revision negotiations was the resultof having preserved a balance between the pursuitof the national interest and international
cooperation. In other words, it was the result of
achieving a balance between the pursuit of thenational interest, in the form of seeking to discuss
the matter at separate talks from the revisionnegotiations, after the conclusion of a revised
treaty, in order to delay accession to theconventions as long as possible, with the objectiveof protecting domestic industry, and implementing
international cooperation, as Japan had to respondto repeated demands from other countries for its
accession to these conventions.
●

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7 ●