Doshisha-Oxford Lecture: Cross-Border Trade Secret Misappropriation and the Extended Reach of Japan's Unfair Competition Prevention Act: Implications and Challenges of Non-Territoriality in IP Law

The purpose of this lecture is to revisit the proper scope of trade secret protection in today’s global economy through the lens of the “Geographical Reach of Law,” by comparatively examining two legal developments on opposite sides of the Pacific: the 2023 amendments to Japan’s Unfair Competition Prevention Act (UCPA) and the U.S. Court of Appeals for the Seventh Circuit’s 2024 decision in Motorola Solutions, Inc. v. Hytera Communications Corp.

In an era of accelerating digitalization and globalization, trade secrets—often the very source of a firm’s competitive advantage—can circulate and proliferate across national borders instantaneously. The widespread adoption of cloud computing and the normalization of remote access have blurred the physical location of information, posing a profound challenge to the “Territoriality Principle” that has long underpinned traditional legal regimes, particularly intellectual property systems such as patent and copyright law.

Traditionally, intellectual property rights have been understood to have effect only within the territory of each state and, as a rule, not to extend to conduct occurring abroad. Yet Japan and the United States are now showing a tendency, in the context of trade secret law, to partially recalibrate that principle and to extend the law’s reach beyond their national borders (an “Extended Reach”).

Why is territoriality maintained for patents and copyrights, while extraterritorial application is permitted for trade secrets? This lecture seeks to answer that question from two perspectives: (i) the transformation in private international law methodology (from a “legal-relationship” approach to a “rule-based” approach), and (ii) the nature of the legally protected interest (from a quasi-proprietary interest to the regulation of conduct). In addition, by comparing these developments with EU law—which adopts a different approach, including under instruments such as the Rome II Regulation—this lecture aims to contextualize this emerging trend and underscore both its significance and its inherent challenges.