Introduction
The fact-finding survey published by the Japan Fair Trade Commission (JFTC) on March 11, 2026 carries significant weight in that it concretely shows how intellectual property rights, know-how, and industrial data held by small and medium-sized enterprises are actually treated in business transactions.
What is particularly noteworthy is that unfair transactions involving the provision of intellectual property and know-how are increasingly being recognized not merely as a “problem of unequal bargaining power between business partners,” but as an issue that may constitute an abuse of a superior bargaining position under the Antimonopoly Act.
This announcement contains an important message not only for those engaged in intellectual property practice, but also for manufacturing companies, IT businesses, startups, and large corporations that transact with small and medium-sized enterprises.
The Reality Revealed by the Survey Results
In this survey, responses were collected from 6,973 companies, mainly in the manufacturing and information and communications sectors. Of these, 3,824 companies stated that they possess intellectual property rights, proprietary know-how, industrial data, or similar assets. However, it was also revealed that about half of them—1,913 companies—have neither personnel nor external experts responsible for checking how such intangible assets are handled.
This figure is highly suggestive. It means that many companies possess valuable intellectual assets, yet have not sufficiently established internal systems to protect them.
Even more serious is the fact that 15.8% of the companies possessing intellectual property and similar assets reported having, in the past, accepted “transaction terms they could not agree with.” This indicates that the issue is by no means exceptional, but rather a structural problem with a certain degree of prevalence.
The Problem Is Not Limited to “Explicit Taking”
The cases introduced in the survey include instances where a company sought to conclude an NDA but was refused after being threatened with termination of the business relationship, cases where a company was asked to provide design drawing data outside the scope of the contract free of charge, and cases where, after delivery, a company was compelled to assign the copyright in a program without compensation.
What these cases have in common is that, even if the counterparty does not openly say, “Give us your intellectual property,” the conditions are effectively imposed in a manner that cannot realistically be refused, against the backdrop of dependence on the continuation of the business relationship or the securing of orders.
In other words, the essence of the problem lies not only in the wording of the contract, but in the asymmetry of bargaining power. Even where an agreement has formally been reached, there are many situations in which it is difficult to say that such agreement was truly based on free will.
In this respect, whereas conventional IP practice has tended to focus on “how the contract should be drafted,” this development introduces, in a much stronger way, a competition policy perspective that asks, “Was that contract term itself the result of fair negotiation in the first place?”
For SMEs, Intellectual Property Is the Very Source of Profit
As the JFTC points out, intellectual property rights, know-how, and data are not merely incidental by-products for small and medium-sized enterprises. Rather, they are the very core of competitiveness, a source of future growth, and even a foundation for wage increases.
Even companies that cannot compete with large corporations on price alone often maintain a strong market presence through original design concepts, accumulated on-site process improvements, expertise in analyzing operational data, and ingenuity in programs and algorithms. For such companies, intellectual property and know-how may be “hard-to-see assets,” but in substance they are among the most important business assets they possess.
Nevertheless, if those assets are allowed to flow out without compensation or for unjustifiably low consideration, companies are likely to lose the incentive to invest in research, development, and improvement activities. As a result, the harm would not stop at the level of individual firms; it could also weaken innovation across the industry as a whole.
A Shift in Mindset Required in Corporate Practice
In light of the survey results, it is no longer enough for SMEs to assume that “good technology will be properly valued.” What is essential is the perspective of “how to protect that value and how to incorporate it into contractual arrangements.”
That said, many companies in reality cannot afford to maintain in-house IP or legal personnel. For that reason, it is not realistic to require every company to build a highly sophisticated IP legal framework. At the very least, however, companies need to foster a culture of confirming key issues in advance, such as the scope of confidential information, ownership of rights in deliverables, whether secondary use is permitted, the conditions for providing data, and the approach to compensation.
At the same time, large corporations also bear significant responsibility. If there remains a business practice of treating the knowledge and expertise of suppliers or contractors as something to be incorporated as a matter of course, that is not merely a way of reducing procurement costs; it leads to the erosion of the very foundation of fair transactions. While it may appear advantageous in the short term, in the long term it may hinder the development of technology suppliers and undermine the company’s own sustainable competitiveness.
The Significance of the Upcoming Guidelines and Key Points to Watch
It is important that the JFTC has indicated its intention to formulate and publish guidelines jointly with the Small and Medium Enterprise Agency and the Japan Patent Office. Issues concerning the handling of intellectual property, know-how, and data have until now tended to be discussed in a fragmented manner across contract practice, subcontracting transactions, trade secret management, and copyright processing. Going forward, these issues are likely to be organized in a cross-cutting manner, clarifying what kinds of conduct may become problematic.
In practice, major points of focus will likely include what kinds of conduct will be regarded as an abuse of a superior bargaining position, what circumstances may justify such conduct, and how clearly matters such as refusal to enter into an NDA, demands for additional data, and clauses transferring rights in deliverables will be evaluated.
It is also extremely important that the guidelines do more than merely identify violations. Equally critical is whether they will present practical checkpoints that companies can use preventively, as well as guidance on desirable approaches to contract management. Unless the guidelines are useful in the field, they are unlikely to prevent the recurrence of these problems.
Conclusion
What this fact-finding survey makes starkly clear is the reality that intellectual property, know-how, and data are still too often treated as something that can be handed over “as part of the deal.” In truth, however, they represent value that companies have built up through the investment of time and money.
That is precisely why society as a whole must once again share the recognition that intellectual property, know-how, and data are not things to be “given away for free.”
The JFTC’s latest move should be highly valued as a first step toward reaffirming that obvious principle in the language of law and policy. The key question going forward is whether the forthcoming guidelines will go beyond mere cautionary statements and become concrete norms capable of changing negotiation practices on the ground.