공공 소프트웨어 사업의 지식재산권 귀속에 대한 분석－ 용역계약일반조건의 내용을 중심으로 －

Abstract

According to the research data of the 2008 KIPA Public Sector Software Business, 87.8% of the ownership of the intellectual property of the public sector software business is attributed to the client(government), 5.6% is undecided, 4.1% is under co-ownership and 2.6% to the contractor company; thus, the majority of the owners is still the client institution. In the field of software business, there is a lack of specific contract methods related to intellectual property as per different forms of business and the main reason for current and potential disputes regarding public sector software business between the client and the contractor is that there is no adequate guideline on the attribution of the intellectual property right. Until currently, in the case of the government consigning a software service, the government as client would own the intellectual property as a usage, therefore, rendering the private corporation with a difficult situation with obstacles when it comes to developing different products based on the software owned by the government and attempts for export or making profit. Thus, the need to improve the contract condition to help the developer-contractor to use the software made for the government, is imminent, if it is used commercially. Moreover, for the person responsible for the actual contracts, a guideline on the attribution of the intellectual property right of software business that helps decide whether the client requires to ensure the ownership of the intellectual property or not, is required. The recently amended Administrative Code of State Contract related matters(「General Conditions of Service Contract」, Accounting Regulations of the Ministry of Strategy and Finance) provides that the contractor-developer of a software is allowed to jointly own the intellectual property with the view of commercializing the product independently. This provision reflects the constant requests from the software business circles. In this paper, references were made to provisions concerned with the attribution of intellectual property rights under the current intellectual property laws such as copyright law and patent law, and judicial precedents related to consignment of software development or works made for hire. Based on these studies, this paper will make a critical analysis on the「General Conditions of Service Contract」of the Ministry of Strategy and Finance.