지적재산법 체계화에 관한 연구

Abstract

The traditional protection method for granting the rights is settled as the patent approach to protect ideas and the copyright approach to protect expression. The embodied idea which is protected by patent would be classified by two factors. One factor is how difficult to perform the revers analysis and the other is whether it is possible to determine the embodied idea has inventive step or not. In order to maximize the effectiveness of the patent system requiring huge social cost, I suggest that the subject matter of patent should be focused on the embodied idea that has the inventive step with difficulty in its analyzing reverse. Copyright approach is suitable for protecting the artistic works. Today, however, the copyright system is also triggered to protect modern works; in that case one should get the authorization to exploit the work when the person suggests the reasonable condition satisfying the fair trade practice. In addition, the subject matter to be protected by copyright is increasingly expanded to the output resulted from the investment. However, the public domain would be jeopardized when the non-creative works are protected by copyright only because of the investment. To solve this problem, it is required new concepts for the output incurred by investment separated from the subject matter of copyright. In this study, I suggest that the output resulted from the investment should be protected by the neighboring right system. It is hard to distinguish the modern works from artistic works, since Berne Convention states the copyright should be granted to all kind of original works without any procedure or formality. There is no alternative proposal other than to converse the other right after voluntarily waving copyright. To design such protection method is difficult, but the reform of the copyright system is desirable to bolster public interests. In conclusion, it is not justified to grant the intellectual property right unless the public interests are created. The legal protection system of intellectual property should be designed in the view of maximizing the public interest, not considering the natural right of the creator of intellectual property.