Japan Japon Japan. Report Q194. in the name of the Japanese Group by Eiichiro KUBOTA

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1 Japan Japon Japan Report Q194 in the name of the Japanese Group by Eiichiro KUBOTA The Impact of Co Ownership of Intellectual Property Rights on their Exploitation Questions I) The current substantive law 1) Groups are invited to indicate whether, in their countries, the statute of co ownership of IP rights is uniformly organised or if each IP right has its own regulation concerning co ownership, particularly as far as their exploitation is concerned. What options are left for co owners to regulate their co ownership relationship: are the statutory rules mandatory, or do they apply only in case of the absence of a contractual regulation of co ownership between the parties? i) In Japan, there are no uniform legal provisions on co ownership applicable to all intellectual property rights. Instead, each intellectual property law has its own provisions on co ownership. The provisions on co ownership for patent right, utility model right, design right, trademark right and right of layout designs of integrated circuits resemble each other, but are different on copyrights in some respects. ii) Generally, contractual agreements between co owners are respected and not subject to mandatory application of the relevant statutory rules. However, it is provided that a jointly owned patent right, in principle, cannot be assigned, pledged or licensed without the consent of all other co owners (Article 73(1) and (3) of the Patent Act). In addition, each joint owner, in principle, may freely work their jointly owned patented technology, but if otherwise agreed upon by contract, they are required to follow it (Article 73(2) of the Patent Act). A jointly owned copyright cannot be assigned or pledged without the consent of all other co owners (Article 65(1) of the Copyright Act), as in the case of patent right and other industrial property rights. However, in the case of jointly owned copyrights, their exercise also requires the consent of all other co owners, different from patent rights and other industrial property rights (Article 65(2) of the Copyright Act). An exercise of copyright means that a copyright holder him/herself performs any of the acts reserved only for copyright holders under the Copyright Act, and includes reproduction of his/her copyrighted work. On the other hand, any of the co owners may perform an act for preserving their right, i.e. act of enforcement (Article 117 of the Copyright Act). With regard to works of joint authorship, the moral rights of co authors of a work of joint authorship may not be assigned in any case (Article 59 of the Copyright Act), and may not be exercised without the unanimous agreement of all co authors (Article 64 of the Copyright Act). 1

2 2) Groups are invited to explain who has the right to exploit an IP right which is co owned by two or more persons: may each co owner exploit the right freely and without any consent from the other co owners or is this exploitation subject to conditions? Even if this exploitation by only one co owner is permitted by the national law, shall the co owner who exploits a right pay any compensation to the other co owners. Finally, in case compensation is required by the legal rule, how is the amount of compensation determined? In the case of patent rights, Article 73(2) of the Patent Act provides that each of the co owners of the jointly owned patent right may, unless otherwise agreed upon by contract, work the patented invention without the consent of the other co owners. Since this provision provides each co owner with the right to work their jointly owned patent independently, each co owner basically may freely work the whole of the patented invention without being required to obtain consent of other co owners or to pay any compensation to other co owners, regardless of his share in the jointly owned patent. Article 73 of the Patent Act also applies to jointly owned utility model rights, design rights and trademark rights. Furthermore, provisions similar to Article 73 of the Patent Act are included in the Act on Circuit Layout of Semiconductor Integrated Circuits for jointly owned right of layout designs of integrated circuits and the Seeds and Seedlings Act for jointly owned breeder s right. However, if co owners, by means of contract, have agreed that when a co owner uses the jointly owned patented invention, he/she shall pay compensation to other co owners, payment of compensation will be required as a matter of course. In this connection, it should be noted that it is not always easy to distinguish working by a co owner which requires no consent in principle, from a third party s working of the jointly owned patent which requires consent of all other co owners in principle. The Former Supreme Court held in the Knitting Machine case decided on December 22, 1938 that manufacturing work made by a subcontractor by using a jointly owned patented technology will be deemed to be working by one of the co owners, if i) the co owner and the subcontractor have entered into a contract which provides that the co owner will have the subcontractor manufacture the products by paying labor charge, ii) the co owner has directed and supervised the subcontractor s manufacturing work, and iii) the subcontractor has delivered all of the products manufactured to the co owner. However, in most cases where a co owner have made the patented products by a third party, it is unclear whether such an operation can be deemed as an act of working of the patented invention by the owner him/herself, and therefore a prior contractual arrangement among co owners will be required. The situation differs for copyrights. Article 65 (2) of the Copyright Act provides that a jointly owned copyright may not be exercised without the unanimous agreement of all co owners. In other words, a co owner of a jointly owned copyright cannot use the copyrighted work if any of the other co owners disagrees with use of the copyrighted work by the co owner. Since, under this provision, exercise of a jointly owned copyright will be made necessarily with unanimous agreement of all of the co owners, distribution of the profit arisen from exercise of the jointly owned copyright will be made as agreed on by all of the co owners. If a co ownership contract has been entered into among the co owners, the profit will be distributed among the co owners in accordance with the ratio of distribution provided in the contract. 2

3 3) The Groups are also invited to give an overview of their national Law in relation to the benefits which may result from the exploitation of an IP right which is co owned. In particular, the Groups are invited to indicate if their national Law provides any kind of obligation for a co owner who exploits personally its share of an IP right to pay any benefits to the other co owner wherever the second exploits or no the same IP right. If there is such an obligation, how the amount of money that should be paid to another co owner is determined? In Japan, there is no statutory provision on profits or benefits which may result from exploitation of a jointly owned intellectual property right. Therefore, there is no statutory concept where a co owner who personally exploits a jointly owned patent right or other jointly owned IP right shall distribute the profits or benefits arisen therefrom to other co owners. 4) The Groups are also invited to indicate if the co owner may grant a licence to third parties without any authorisation from other co owners, or if the granting of such a licence is subject to certain conditions? If such conditions exist, the Groups will have to specify their content. First, the Patent Act provides that where a patent right is jointly owned, no co owner may grant an exclusive license or a non exclusive license with regard to the patent right to any third party without the consent of all of the other co owners (Article 73(3)). This provision applies mutatis mutandis to utility model rights (under Article 26 of the Utility Model Act) and design rights (under Article 36 of the Design Act). Furthermore, it applies mutatis mutandis to trademark rights (under Article 35 of the Trademark Act), and therefore, each co owner of a jointly owned trademark right may not grant an exclusive license or a non exclusive license with regard to the trademark right to any third party without the consent of all of the other joint owners. Also with regard to copyrights, it is provided that a jointly owned copyright may not be exercised without the unanimous agreement of all co owners in Article 65(2) of the Copyright Act, and therefore, authorization of all co owners is required to grant a license to use the jointly owned copyright to a third party. However, the Copyright Act also provides that a co owner may not, without justifiable grounds, prevent such unanimous agreement (Article 65(3)). Also in the case of rights of layout designs of integrated circuits, treatment similar to that in the Patent Act is provided. More specifically, Article 14(3) of the Act on Circuit Layout of Semiconductor Integrated Circuits provides that, where a right of layout designs of integrated circuits is jointly owned, no co owner may grant an exclusive license or a non exclusive license with regard to the right of layout designs of integrated circuits to any third party without the consent of all of the other co owners. 5) The question of the exploitation of an IP right interferes with the possibility of transferring such an IP right to third parties. The Groups should indicate the solution in theirs countries relating to the possibility of transferring a share of co ownership of an IP right to third parties: may such a transfer (by assignment) be carried out freely without any conditions or must it be offered firstly to the other co owners or is it specifically subject to the agreement of the other co owners? The Groups are invited to indicate the conditions to which such a transfer is subject. Article 73(1) of the Patent Act provides that where a patent right is jointly owned, no co owner may assign or establish a right of pledge on the said co owner s own share without the consent of all of the other co owners. 3

4 The legislative purpose of this provision has been explained as follows: Different from use of a tangible property, a person s use of a patented invention does not prevent another person s use of that invention. Furthermore, effects that may be obtained from an invention will significantly differ depending on the size of capital invested for working the invention and/or ability of technical experts who work that invention, and this may affect the economic value of other co owner s shares. For these reasons, mutual trust among the co owners of a jointly owned patent right is indispensable, and therefore, it was decided to prohibit the change of a co owner through unrestricted assignment of share in a jointly owned patent right. (KOGYOSHOYUKENHO CHIKUJO KAISETSU [JPO s Explication on Industrial Property Laws] 15 th edition, at 205). Article 73(1) only prohibits assignment of share in a jointly owned patent right and does not prohibit its transfer by inheritance or other general succession. In other words, inheritance or other general succession of a share in a jointly owned patent right does not require the consent of the other co owners (Id. at 206). Therefore, transfer of a share in a jointly owned patent resulting from merger of companies may be effected without the consent of the other co owners. In this connection, it should be pointed out that Article 98, though not limited to the case of jointly owned patent rights, provides that transfer of a patent right (except for a transfer arising from general succession including inheritance) shall not take effect unless registered. Besides, Article 34 (1) provides that the succession of the right to obtain a patent prior to the filing of the patent application shall have no effect on any third party unless the successor in title files the patent application. The above mentioned provisions of the Patent Act apply mutatis mutandis to utility model rights under Article 26 of the Utility Model Act and design rights under Article 36 of the Design Act. With regard to trademark rights, although additional restrictions are, from the viewpoint of protection of public interests and prevention of confusion, imposed on their transfer (Articles 24 2(2) to (4), 24 3 and 24 4 of the Trademark Act), Article 73 of the Patent Act also applies mutatis mutandis to trademark rights (Article 35 of the Trademark Act). In addition, division or transfer of a trademark is subjected to the condition that they shall be made for each item of designated goods or services (Articles 24 and.24 2 of the Trademark Act). With regard to rights of layout designs of integrated circuits, Article 14(1) of the Act on Circuit Layout of Semiconductor Integrated Circuits, like Article 73(1) of the Patent Act, requires the consent of other co owners as the condition for transfer of a share in a jointly owned right of layout designs of integrated circuits to be allowed. With regard to jointly owned copyrights, the Copyright Act provides that a co owner may not transfer or pledge his share in such a copyright without the consent of the other co owners (Article 65(1)). However, a co owner may not, without justifiable grounds, refuse to give such consent (Article 65(3)). The moral rights of author shall be personal and exclusive to the author and cannot be transferred (Article 59 of the Copyright Act). 6) IP rights may also serve as a guarantee for the investment which is necessary for their exploitation. The question then arises of whether a share in co ownership of an IP right can be used as such a guarantee and under what conditions. Is it necessary to obtain agreement from all the co owners in order to secure an IP right or can each co owner freely secure his own share of an IP right without seeking the consent of the other co owners? The Groups are invited to describe their legal systems on this question. 4

5 Article 73(1) of the Patent Act provides that a co owner of a jointly owned patent right may not establish a right of pledge on his/her share in that patent right without the consent of all of the co owners. This provision imposes the same restriction on the assignment and on establishment of a right of pledge because the latter, when foreclosed, may have the same effect as the former. Considering the fact that unauthorized assignment of a co owner s share is prohibited for the purpose of protecting other co owners interest, it should be construed that a creditor of a co owner may not attach the co owner s share in a jointly owned patent right or convert it into cash. Even by an assignment order issued by a court, transfer of such share will not take effect (Tokyo District Court judgment of July 9, 1955, HANREI KOUGYOUSHOYUKENHO [Court Decision in Industrial Property Cases] No.135; Tokyo High Court judgment of November 15, 1955, Id. No (for comment on this judgment, see Naoto KOMURO s comment for the 65th case in TOKKYO HANREI HYAKUSEN [Selected 100 Patent Case]). For the same reason, although not expressly prohibited by the Patent Act, security interest other than pledge also may not be established on a co owner s share of a jointly owned patent right without the consent of other co owners. If it is allowed, there is a risk that such a share may be transferred to a third party against the other co owners will (Nakayama, Chukai Tokkyoho [Annotated Patent Act] the 3rd edition (2000), vol. I at 803). Article 73(1) of the Patent Act applies mutatis mutandis to utility model rights under Article 26 of the Utility Model Act, design rights under Article 36 of the Design Act and trademark rights under Article 35 of the Trademark Act. Also, Article 14(1) of the Act on Circuit Layout of Semiconductor Integrated Circuits, like the Patent Act, requires the consent of other co owners as the condition for establishment of pledge right on a co owner s share in a jointly owned right of layout designs of integrated circuits to be allowed. The Copyright Act, as in the case of transfer of a co owner s share, requires other co owners consent as the condition for pledging a co owner s share (Article 65(1)), and prohibits other co owners from refusing to give such consent without justifiable grounds (Article 65(3)). 7) The enforcement of IP rights plays an important role in their exploitation. Such enforcement is mainly achieved by means of legal proceedings that may be filed by the owner of an IP right in order to penalise the infringement of his right by third parties. The question arises of whether such a legal action must be filed by all of the co owners of an IP right or whether it can be filed by only one of the co owners. The Groups are therefore invited to specify the legal solutions and procedural exigences in their countries in relation to the possibility of one of the co owners of an IP right filing an infringement action. With regard to enforcement of patent right, utility model right, design right, trademark right and right of layout designs of integrated circuits, there is no substantial difference between a right owned by an owner and a right jointly owned by two or more owners. Even in the case of a jointly owned right, any of its co owners may work or use it independently, seek injunction (to stop or prevent infringing acts) by him/herself and claim damages or unjust enrichment in proportion to his/her share (see Articles 709 and 703 of the Japanese Civil Code, Article 100 and other relevant provisions of the Patent Act and Article 22 of the Act on Circuit Layout of Semiconductor Integrated Circuits). The Copyright Act provides that a jointly owned copyright, including rights to a work of joint authorship (as defined in Article 2(xii)), may not be exercised without the unanimous agreement of all co owners (Article 65(2)). However, co owners are prohibited from preventing such agreement without justifiable grounds (Article 65(3)). 5

6 i) Patent and other Industrial Property Any co owner may, by him/herself, seek injunction against an infringing act. Request for an injunction by any of the co owners is regarded as a legitimate act based on his/her share in the right or act of preservation as provided by the proviso to Article 252 of the Civil Code. In addition, a co owner is allowed to claim damages or unjust enrichment in proportion to his/her share. ii) Copyright A co owner of a jointly owned copyright (including a work of joint authorship) may, by him/herself, seek injunction against an infringing act, and may claim damages or unjust enrichment in proportion to his/her share (Article 117 of the Copyright act and Article 427 of the Civil Code). However, with regard to enforcement against infringement of moral rights of co authors, the co authors shall appoint, from among themselves, one co author to exercise their moral rights, as their representative (Article 64 of the Copyright Act). 8) The exploitation of the IP rights depends also upon the existence of these rights and, more specifically, upon the capacity of their owner to ensure the continuity of the existence of these rights. Now, the decision on maintaining patents or trademarks by the payment of the renewal fee, may vary according to the legal system of organization of co ownership. The Groups are therefore invited to tell how the question of the decision making process of the maintaining or renunciation of the patents or trademarks is organized in their national law. (Maintenance of patent right) It is provided that an interested person may pay the patent fees even against the will of the person by whom the patent fees are to be paid (Article 110(1) of the Patent Act). Under this provision, a co owner may unilaterally maintain the jointly owned patent right by paying the whole of patent fees. Generally, an act for preservation of a jointly owned patent right, such as a litigation for rescinding the JPO s decision in a trial for patent invalidation, may be performed by one of the co owners (see Supreme Court judgment in Case No. 2001(Gyo hi) No.154 and other relevant cases). However, a request for a trial against an examiner s decision of refusal, trial for correction or correction in a trial for patent invalidation shall be jointly filed by all of the co owners (Articles 14, 132(3) and 134 2(5) of the Patent Act). (Maintenance of trademark right) It is provided that an interested person may pay the registration fees (excluding a registration fee due to be paid at the time of a request for registration of renewal) even against the will of the person by whom the registration fees are to be paid (Article 41 3(1) of the Trademark Act). Therefore, when the examiner s decision to register is granted for a jointly owned trademark, any of its co owners may unilaterally pay the whole of the registration fee and thereby register the trademark. However, renewal of registration shall be made by all of the co owners. For other aspects of this issue, the same rules as those for patent right also apply to trademarks. (Waiver of patent right and trademark right) Article 255 of the Civil Code provides that when one of the co owners waives his/her share or dies without any heir, his/her share will be vested in the other co owners. Thus, a co owner may freely waive his/her share. 6

7 A jointly owned patent right or trademark right may be waived only when all of the co owners jointly waive it. Where there is an exclusive or a non exclusive licensee or a pledgee, the consent of such a person is also required (Article 97(1) of Patent Act). 9) The Groups are also invited to describe their national rules of international private law in relation to conflicts of law relating to the co ownership of the IP rights and conflicts of jurisdiction in order to enforce these rights. More specifically, the Groups are requested to indicate if their international private law rules accept that the statute of ownership of an IP right co owned in different countries be regulated by one law. In this case, what law is applicable for determining the statute of co ownership? What is the criteria for seeking the proper jurisdiction in cases of conflict between the co owners concerning their rights? (Choice of applicable law) What laws shall be applied to an issue involving co ownership of an intellectual property right depends on the nature of the issue. Where the co owners dispute over a possible breach of the co ownership contract entered into among them, it is an issue of the obligation right relationship, and therefore the laws of the country that the parties (co owners) have designated in the contract shall apply to such a dispute. Where the validity of a jointly owned industrial property right is disputed, the laws of the country where the disputed right has been registered are the laws that have the closest connection with the disputed right, and the laws of that country shall apply. Where the remedy for protection of a copyright is at issue, the laws of the country where protection is sought shall apply in accordance with Article 5(2) of the Berne Convention (Tokyo District Court judgment of May 31, 2001). As for issues that may arise in relation to the obligation right relationship among co owners, co owners may choose any country s laws. In such cases, regardless of what country s laws are designated as the applicable law, such laws may apply to the dispute unless their application contravenes public order in Japan. (Criteria for deciding the country that has jurisdiction over the dispute) In Japan, there is no statutory provision that directly governs the issue of international jurisdiction. However, there is an established case law rule that Regarding a case filed to a court in Japan, if any of the jurisdictions provided by the Code of Civil Procedure belong to a court in Japan, it is appropriate to subject the defendant to the jurisdiction of a Japanese court; provided, however, that when there are special circumstances that may contravene the principle of equity or of appropriate and speedy court proceedings, Japanese courts should deny their jurisdiction. (Supreme Court judgement of November 11, 1997, 51 Minshu 10 at 4055). Under the Code of Civil Procedure, a court in Japan will have jurisdiction over a case when: The domicile of the defendant is located in Japan; In the case of a juridical person, the principal office or the principal business establishment of the defendant is located in Japan; The representative person of the defendant or the person who manages the defendant s operation has his/her domicile in Japan; The defendant enters an appearance; or The locus delicti (place of tort) is Japan. 7

8 The above mentioned rule will also apply to a dispute arisen relating to a jointly owned right. When jurisdiction of a Japanese court can be found under these rules, even with regard to a right registered in a foreign country, the Japanese court will not deny its jurisdiction over the case brought for enforcement of such a right. 10) Finally, the Groups are invited to indicate what other specific solutions or problems relating to the question of the exploitation of IP rights co owned by two or more persons are raised in their respective countries. II) We have discussed all of the systems and issues unique to Japan in the answers to the above nine questions. Proposals for future harmonisation The Groups are also invited to formulate theirs suggestions in the framework of an eventual international harmonisation of national/regional intellectual property rights or, at least, an improvement or completion of the existing solutions. The Japanese Group of the AIPPI considers that issues arising among co owners shall be left to the autonomous decision of the parties. In other words, the principle of freedom of contract shall govern such issues. For example, where a jointly owned intellectual property is registered or is effective in many countries, it is desirable to govern co ownership of the parties by one common rule applicable to all of these countries. In such a case, issues arising among co owners may be sufficiently solved if the parties have designated applicable laws for their relationship and they apply to the party s relationship in all of the countries or if harmonized rules for co ownership of intellectual property have been globally adopted. However, in the case of breach of contract such as unauthorized assignment or unauthorized license, issues involving a third party cannot be solved only by the designated applicable laws or by the internationally harmonized rules. In such a case, each country s law on assignment or license, such as what is required to assert validity of an assignment or a license against third parties, whether or not registration is required for an assignment or license to take effect, how a bankruptcy is treated or what treatment is given to co ownership of property under the Civil Code, will affect the consequences of the dispute. In sum, in order to truly solve the issues involving co ownership of intellectual property, it is not sufficient to harmonize only the laws on co ownership of intellectual property, but it is required to harmonize a wider range of related laws. 1) In particular, the Groups are requested to indicate if they consider that the principle of freedom of contracts should apply to allow the co owners to determine the statute of the rights and the conditions for their exercising or if the rules governing co ownership of IP rights should be mandatory. Conditions for co ownership of rights or their exercise shall be left to the parties under the principle of freedom of contracts. The parties shall be allowed to determine all of the rules on their co ownership, and statutory rules shall not mandatorily apply to co ownerships. 2) The Groups are also requested to indicate if a statutory rule should give equal rights to all co owners to individually exploit the IP rights or, without the authorisation of others co owners, to grant the IP rights to third parties or whether, due to the exclusive character of an IP right, such exploitation can only take place with the agreement of all co owners. Should this requirement of the agreement of all co owners apply to all acts of exploitation and acts in defence of IP rights, or only to the acts of disposal of IP rights for the benefit of third parties, such as licensing or transferring to a third party? 8

9 With regard to the relationship among co owners, there are basically the following three issues: i) whether a co owner is allowed to dispose his/her share (for example, assignment thereof and establishment of security interest thereon); ii) whether a co owner is allowed to personally work or use of the jointly owned right; and iii) whether a co owner is allowed to grant a licence of the jointly owned right. As mentioned above, these issues shall be governed by the principle of freedom of contracts, and any statutory provisions shall be viewed as being no more than mere principles. From this viewpoint, the stance adopted by the Japanese Patent Act, which permits a co owner s personal working or use of the right without any condition while requiring the consent of other co owners for assignment of share and granting a license to a third party, seems reasonable. However, under such stance, there remains an ambiguity as to the scope of co owner s own working or use of the jointly owned right. If international harmonization will be made, it shall be made clear what is allowed as an act of co owner s own working or use of the jointly owned right (whether a co owner is strictly required to work or use the right directly by him/herself, or is allowed to use a subcontractor to work or use the right. If subcontracting is allowed, in what scope it will be allowed). Even if co owner s own working or use is allowed, when the term co owner s own working or use is interpreted in a too strict manner, there may be cases where even working or use that may be viewed as substantially made by the co owner him/herself is prohibited. On the other hand, if working or use that may be viewed as substantially made by the co owner him/herself is allowed, there is a risk that the concept of co owner s own working or use will become an unduly wide one. In this respect, cautious examination shall be required with particular needs to work out an appropriate borderline between own working or use and right to have made. With regard to acts in defense of IP rights, in principle, each co owner is allowed to carry out such acts only by him/herself. 3) The Groups are also invited to give their preference as to the possibility of an enforcement action for infringement being initiated by all co owners or only by some of them. In principle, any of the co owners shall be allowed to file an infringement suit only by him/ herself. For example, where a co owner grants a license to a third party without the consent of the other co owner(s) in breach of law or contract, it is unreasonable if another co owner(s) is not allowed to file a suit for injunction of such third party s working or use. Also, it seems unreasonable if, where any of the co owners are reluctant to file an infringement suit, no means to stop the infringement will be left to the other co owners. (Complementary note) In Japan, as mentioned above, after the establishment of right, any of the co owners alone may conduct acts for preserving the validity of the right (such as litigation for rescinding the JPO s decision in a trial for patent invalidation). However, before the establishment of right, co owners are in principle required to act jointly. Although we understand that this Question is not intended for addressing the process for establishing intellectual property right, in our opinion, it is more useful to discuss the possibility of also harmonizing the process for establishing intellectual property right from the viewpoint of respecting freedom of contracts (for example, it may be provided that where parties have agreed in a contract to have one of the party file a patent application as their representative, effect of such agreement may be asserted against the patent office). 9

10 Summary In Japan, for Industrial Property Rights in principle, each co owner has the right to work the invention, but cannot transfer, pledge or license the patent right without the consent of other joint owners. For copyrights, each co owner cannot use, transfer, pledge or license the copyright without the consent of other joint owners. If there is a contract among the joint owners, the agreement in the contract will be applied over the above principle. Each co owner of an IP right can enforce its right to enjoin infringement or to recover damages in proportion to its share from the infringer. The Japanese Group believes that harmonization in this aspect is important, because that will give more stability to joint ownership all over the world, but the mere harmonization of the law that governs co ownership will not solve all problems in this aspect. Further harmonization of substantive law is necessary to achieve such a goal. Résumé Au Japon, concernant les droits de la propriété industrielle, chaque co propriétaire a en principe le droit d exploiter l invention, mais ne peut transférer le droit de brevet, donner celui ci en gage, ou accorder une licence à son sujet sans l accord des autres co propriétaires. Pour les droits d auteur, chaque co propriétaire ne peut transférer le droit d auteur, donner celui ci en gage ou accorder une licence à son sujet sans l accord des autres co propriétaires. S il existe un contrat entre les co propriétaires, l accord inclus dans le contrat aura préséance sur le principe ci dessus. Chaque co propriétaire d un droit de la PI peut faire appliquer son droit d interdire la contrefaçon ou d obtenir du contrefacteur des dommages intérêts en proportion de sa quote part. Le Groupe japonais considère que l harmonisation est ici importante, car elle confèrera plus de stabilité à la co propriété dans le monde, mais la simple harmonisation de la loi qui régit la co propriété ne résoudra pas tous les problèmes à ce sujet. Une harmonisation supplémentaire de la loi substantielle est nécessaire afin d atteindre un tel objectif. Zusammenfassung In Japan ist jeder Mitinhaber gewerblicher Eigentumsrechte grundsätzlich dazu berechtigt, die Erfindung auszuüben, kann das Patentrecht allerdings nicht ohne die Zustimmung der anderen Mitinhaber übertragen, verpfänden oder lizenzieren. Im Fall von Urheberrechten kann ein Mitinhaber das Urheberrecht nicht ohne Zustimmung der anderen Mitinhaber nutzen, übertragen, verpfänden oder lizenzieren. Wenn zwischen den Mitinhabern eine entsprechende Vereinbarung besteht, geniesst die vertragliche Vereinbarung gegenüber den oben genannten Grundsätzen Vorrang. Jeder Mitinhaber eines gewerblichen Eigentumsrechts kann seinem jeweiligen Anteil entsprechend Ansprüche auf Entschädigung wegen Eigentumsrechtsverletzung erheben. Die Gruppe Japan ist der Auffassung, dass eine Harmonisierung auf diesem Gebiet wichtig ist, da der Schutz der Mitinhaberschaft auf diese Weise weltweit abgesichert wird, wobei allerdings eine blosse Harmonisierung desjenigen Gesetzes, das die Mitinhaberschaft regelt, nicht alle anstehenden Probleme wird lösen können. Zu diesem Zweck ist eine weitere Harmonisierung des materiellen Rechts erforderlich. 10