국제지식재산권 침해에 대한 보호국법의 적용과 그 한계

As the issue of an intellectual property right looms in international trade, claims in terms of its infringement are increasing. Korean Private International Law stipulates protection of intellectual property rights in Article 24, which generates doubts about its interpretation without enough precedents thereof. Korean Private International Law adopts the universally recognized rule of the lex loci protectionis (law of the country for which protection is sought). The territoriality principle on which the rule is based implies that an intellectual property right in fore in a specific country can only be infringed if the act of infringement takes place in the country. Intellectual property rights are used by countries as tool of economic policy for the promotion of trade. The rule results in a uniform approach to apply the lex loci protectionis to the infringement of an intellectual property right as well as to the validity and scope of the right, its existence, and its duration. The rule also guarantees harmony with the economic policy of the country. In short the rule produces greater certainty as to the law applicable. On the other hand the rule imposes on commercial parties an increased regulatory burden requiring more extensive investigation of national intellectual property rights in doing international business transactions. Questions concerning the creation, registration, validity, or transfer of intellectual property rights often arise as a preliminary point in an infringement context. In an infringement action a contractual defense based in most cases on a license agreement can be brought. It is necessary to clarify how both infringement and the other issues interact in terms of the law applicable. In a ubiquitous infringement case the law applicable is the lex loci protectionis on a country-by-country basis. To avoid this irrational abuse of the rule it would be desirable to introduce a de minimis rule requiring substantial local activity by the infringer or directed activity to a certain territory. Also it might be justifiable to apply a single law with the closest connection with the infringement. Korean Private International Law seems to be interpreted that the law applicable for the infringement may be derogated from by an agreement of parties. It would be desirable to clearly provide so with other legal sources to the contrary. It remains to be seen whether Korean Private International Law would be revisited to reform Article 24 by isolating infringement tortious in nature from the other issues and streamlining a provision for infringement with the provisions for torts.