지적재산권 상호간의 이용 · 저촉관계와 그 통일적 해석방안

Abstract

Intellectual property rights such as patent, utility model, design, trademark and copyright are generally interpreted as monopolistic rights in Korea. This leads to an interpretation that one can use their own intellectual property even when their intellectual property uses or conflicts with another intellectual property. In order to prevent this interpretation, specific provisions requiring a previous license from the owner of other intellectual properties are provided in the Korean Patent Act and other corresponding intellectual property Acts. In the Acts, all the imaginable use- and conflict-relations among intellectual property rights are tried to be specified. But the provision does not seem to specify all the feasible use- and conflict-relations. One of the prominent examples is the conflict between patent and copyright for computer programs. This paper addresses the legal relations between the intellectual properties especially when there are use- and conflict-relations among the rights and tries to give consistent interpretation for the relations. Many use- and conflict-relations are showed to be omitted from the present provisions. This may imply present system is not a desirable way to define the legal relation between the rights. A fundamental solution for the deficiency can be the change of the definition for the nature of an intellectual property from current definition of a monopolistic right to an exclusive right. But more feasible solution can be an introduction of general provision requiring a previous license from another intellectual property right holder when there are use- or conflict-relations between intellectual properties.