지식재산권법상 퍼블릭도메인(공공영역)의 개념사

The term and concept of a public domain were traditionally used in France and the United States to represent land owned by the state or government. The concept of a public domain in the context of intellectual property rights was incorporated into the term “anciens lives” in the 1566 Ordinance (l'ordonnance de Moulins de 1566) before the French Revolution. The concept of a public domain was again incorporated into the term ‘propriété publique’ in Article 2 of the Copyright Act(1791) during the French Revolution. Later, a French decision used the term ‘domaine public’ in 1836 instead of the term ‘propriété public’, which was introduced into the Berne Convention in 1866. In the United States, the concept of a public domain in the context of intellectual property rights was mainly used in the term ‘public property’ for most of the 19th century. A decision used the term ‘public domain’ in 1873. In the case of Korea, the term ‘public domain’ appears in the 2012 Korean Supreme Court decision in relation to patent. Given that the term ‘public domain’ itself gives a more positive impression than the the term ‘restriction or exception’ in our copyright law, it is necessary to consider changing ‘restriction or exception’ in our intellectual property law to ‘public domain’.