국제 지식재산권 분쟁과 준거법 결정에 관한 연구

Entering the modern society, the value and importance of intangible assets such as intellectual property is growing. Among the world's 500 companies the ratio of intangible assets to total assets significantly increased from 32% in 1985 to 80% in 2010. As it is sometimes called an 'Intellectual property war’, while the worldwide competition over intellectual property become fiercer, disputes are also increasing. When international intellectual property disputes develop into a lawsuit, problems regarding international jurisdiction and applicable laws may occur. A single act surrounding intangible intellectual property rights may become a infringement of intellectual property rights in multiple countries, and as it also has a territorial characteristic various problems can be raised while determining the applicable law. In the global era of increasing international travel and trade, because of the development of communication technologies infringement of intellectual property rights particularly in cyberspace is now becoming an important issue, and strictly appling the traditional territoriality principle can lead to an illogical result. As the distribution of computer software, databases, and other digital contents through the Internet increases, not considering these changes in the users environment and sticking to strict territorial principles may make legal matters considering cross-border distribution of intellectual property complicated and increase the confusion among the parties involved, so it is time for the principle of territoriality open intellectual property rights matters to be relaxed. Meanwhile, Article 24 of the Private International Act has a regulation on the protection of intellectual property rights, which only says “The protection of intellectual property rights shall be governed by the law of the place where such rights shall be governed by the applicable law of rights secured.”, so there is a controversial question about the interpretation and application of the provision. In the modern society, A single infringement of intellectual property rights may take effect in multiple countries, and especially when there are infringements of intellectual property rights that occur in cross-border virtual spaces like the internet, in many cases the place of act of infringement and the place where the result of the infringement occurs are different, so a difficult situation might occur when determining the applicable law and applying it by the simple laws we have now. As the legal nature of infringement of intellectual property rights is an illegal activity, so in the case of infringement of intellectual property rights which are related to multiple countries, applying the rules on the principle of deciding the applicable law on a illegal activity will help to determine a single applicable law. In the long run I think a legislative resolution is needed to clarify the principles on deciding the applicable laws according to categories of the disputing case.