국제 지식재산사건에서 준거법을 판단한 우리 법원 판결의 동향과 분석

초록

Article 24 of the Korean Private International Law makes it clear that the law governing intellectual property rights infringement is the law of the place where such rights are infringed. However, it is not clear whether other issues related to intellectual property rights are also governed by the law of the country of protection, or other laws including the law of the country of origin may apply to such issues. In patent or trademark-related cases involving a foreign element, the Korean Supreme Court has held that the applicable law for ‘infringement’ of patents or trademarks is the law of the place of infringement, that is, the law of the country of protection, according to Article 24 of the Private International Law. However, the court interprets ‘matters other than infringement’ according to the nature of the matters, not according to Article 24 of Private International Law, and then determines the applicable law. For example, the court has ruled that the applicable law for matters related to the establishment, registration, validity and invalidity, or revocation of patents or trademarks is the law of the country of registration having exclusive jurisdiction over those matters, and ruled that the issue of attribution of the right to obtain a patent in each country with respect to in-service invention shall be governed by the law of the country where the governing law of employment has been in force. On the other hand, in the absence of a meaningful Supreme Court decision on the issue of determining the applicable law in copyright cases involving foreign elements, the lower courts have tended to decide that the law of the country of protection is the governing law not only for copyright infringement but also for the other copyright-related matters, although the decisions are based on different standards—territoriality, Article 5(2) of the Berne Convention, or Article 24 of the Korean Private International Law. However, in a recent case on the joint authorship of online games, the Seoul High Court stated, contrary to the previous rulings, “Cases on copyright holder, establishment, expiration, and transfer of copyright shall be judged according to the law of the country of origin of the work, such as the place where the work was first published or the place of residence or domicile of the author”. Since the case on the joint authorship of online games is currently pending in the Korean Supreme Court, the ruling of the court remains to be seen.

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