섭외지적재산권법 시론

목차

Ⅰ. 서 언

Ⅱ. 연결원칙 : lex loci protectionis
1. 국제조약상의 `lex loci protectionis`
2. 외국의 입법례 및 판례
3. lex loci protectionis의 적용범위

Ⅲ. 보호국법주의의 예외
1. 보호국법주의의 문제점
2. 유럽연합지침
3. 지적재산권법의 역외적 적용

Ⅳ. 지적재산권에 관한 계약의 준거법
1. 당사자들에 의한 준거법의 선택
2. 법의 선택이 없는 경우
3. 지적재산권계약

Ⅴ. 준거법과 공서(Ordre Public)

본문내용

protectionis" is found to be contrary to the public order and the fundamental principles of law in Korea, the remedy under "lex loci protectionis" may not be applicable to the intellectual property disputes under Section 5 of the Private International Law of Korea. One of possible examples with regard to the public order issue could be any punitive damages to be awarded under the American statutes.
The principle of "lex loci protectionis" will, however, have to face substantial difficulties and some changes in its application, since rapid developments of information technology especially those of internet technology have made it possible to render works of authorship and invention pervasively and simultaneously accessible throughout the world. There may arise serious questions as to whether "lex loci protectionis" is appropriate at all, when a substantial number of infringement occurs at the same time in several countries whose intellectual property laws offer substantially different protection. A legislative response to these questions could be seen clearly in the European Council Direction 93/83/EEC of September 27, 1993 on the Coordination of certain Rules concerning Copyright and Rights related to Copyright applicable to Satellite Broadcasting and Cable Retransmission, providing that permission for satellite broadcasting shall only be required in the country where the act of communication to the public or the act of uploading occurred. There are also statutory provisions which extend their protection to infringing activities abroad, i.e. in cases of importing of infringing goods or in cases of exporting component for the purpose of infringing combination abroad. It also appears that extraterritorial application of U.S. intellectual property laws by some courts is a sort of judicial response to those problems.
"Lex loci protectionis" does not always apply to all the issues relating to licensing agreements. When there is a contractual clause on the applicable law, then the disputes may be resolved in accordance with the choice of law clause, except for the issues relating to the validity of intellectual property right, its duration, method for its transfer, and so on. What happens if there is no choice of law clause agreed upon by the licensor and licensee? It seems difficult to answer the question especially because the Private International Law of Korea simply indicates, as an applicable law, the law of the country where the contract was concluded. When the license is issued via fax, E-mail, telephone, or other telecommunications, it is either difficult or meaningless to identify the place where the contract is concluded. It is accordingly submitted in this paper that the law of the country which is most closely related to the license is the law which licensor and licensee are presumed to have chosen as the applicable law and, also, that the law of the most closely related country is, in many cases, consistent with "lex loci protectionis."

키워드

섬외지적재산권법,   보호국법주의,   유럽연합지침,   준거법과 공서,   지적재산권계약,   유럽연합지침