우리나라에서 지재권 제도가 시작된 것은 1908년 8월 12일 시행된(8월 16일 시행이라는 기록도 있음. 아래 Pontius 1909, p. 5) ‘한국에서의 발명, 디자인, 상표 및 저작권에 관한 미일 조약’이다. 이 조약은 1908년 5월 19일 미국 워싱턴에서 서명되었고, 미국 상원의 1908년 5월 20일 동의, 미국 루즈벨트 대통령의 1908년 6월 2일 비준, 일본의 1908년 8월 3일 비준을 거쳐 1908년 8월 11일 공표되었다.
이 조약 제1조는 “일본국 정부는 발명, 디자인, 상표 및 저작권에 관하여 일본에서 시행되고 있는 법령과 유사한 법령을 이 조약의 시행과 동시에 한국에서도 시행되도록 하여야 한다. 이 법령은 미국인에게도 한일 양국 국민과 동동하게 적용된다”고 규정하여, 일본법이 우리나라에 의용되도록 하였다. 그리고 제5조에서 미국인에 대한 소급보호를 규정하여 “제1조에 따른 법령의 시행일 전에 미국인이 일본에서 적법하게 특허를 받았거나 등록한 발명, 디자인, 상표, 저작권은 별도의 추가 절차없이도 한국에서 동등한 보호를 받을 권리를” 갖도록 했다.
그리고 저작권에 대해서는 1908년 8월 16일 발효된일본의 칙령 제200호를 통해 일본의 저작권법이 한국에도 적용되도록 하였다.
이 조약의 영문판은 2개의 미국 의회 기록에 자세히 나와 있다. (1) 미국 하원 특허 위원회 청문회 자료 Copyrights: Hearings Held Before the Committee on Patents, House of Representatives, Sixty-eighth Congress, Second Session, on H.R. 11258, U.S. Government Printing Office, 1925 (529면 이하). 이 자료는 구글 북스에서 무료 전자책으로 제공하고 있다. (2) Albert William Pontius, Protection extended to patents, designs, trade-marks, and copyright in China, Japan, and Korea, U.S. Government Printing Office, 1908. 이 자료 역시 구글 북스에서 무료 전자책으로 볼 수 있다.
이 자료들로부터 정리한 조약과 관련 칙령의 영문은 아래와 같다(아래 조약의 일본어 명칭은 “韓国に於ける発明・意匠・商標及び著作権の保護に関する日米条約“이다).
Protection Extended to Patents, Designs, Trade-marks, and Copyrights in China, Japan, and Korea
TREATY Between the UNITED STATES and JAPAN for the PROTECTION of TRADE-MARKs, etc., in KOREA
Signed at Washington, May 19, 1908. Ratification advised by the Senate, May 20, 1908. Ratified by the President, June 2, 1908. Ratified by Japan, August 3, 1908. Ratifications exchanged at Tokyo, August 6, 1908. Proclaimed August 11, 1908.
BY THE PRESIDENT of THE UNITED STATES of AMERICA
A PROCLAMATION
Whereas a convention between the United States of America and the Empire of Japan providing for reciprocal protection in Korea for the inventions, designs, trade-marks, and copyrights of their respective citizens and subjects, was concluded and signed by their respective plenipotentiaries at Washington on the nineteenth day of May, one thousand nine hundred and eight, the original of which convention is word for word as follows: The President of the United States of America and His Majesty the Emperor of Japan, being desirous to secure in Korea due protection for the inventions, designs, trade-marks, and copyrights of their respective citizens and subjects, have resolved to conclude a convention for that purpose and have named as their plenipotentiaries, that is to say: The President of the United States of America, Robert Bacon, Acting Secretary of State of the United States; and His Majesty the Emperor of Japan, Baron Kogoro Takahira, Shosammi, grand cordon of the Imperial Order of the Rising Sun, his ambassador extraordinary and plenipotentiary to the United States of America; Who, after having communicated to each other their full powers, found to be in good and due form, have agreed upon and concluded the following articles:
ART. I. The Japanese Government shall cause to be enforced in Korea simultaneously with the operation of this convention, laws, and regulations relative to inventions, designs, trade-marks, and copyrights similar to those which now exist in Japan. These laws and regulations are to be applicable to American citizens in Korea equally as to Japanese and Korean subjects. In case the existing laws and regulations of Japan referred to in the preceding paragraph shall hereafter be modified, those laws and regulations enforced in Korea shall also be modified according to the principle of such new legislation
ART. II. The Government of the United States of America engages that in case of the infringement by American citizens of inventions, designs, trade marks or copyrights entitled to protection in Korea, such citizens shall in these respects be under the exclusive jurisdiction of the Japanese courts in Korea, the extraterritorial jurisdiction of the United States being waived in these particulars.
ART. III. Citizens of possessions belonging to the United States shall have in respect to the application of the present convention the same treatment as citizens of the United States.
ART. IV. Korean subjects shall enjoy in the United States the same protection as native citizens in regard to inventions, designs, trade-marks and copyrights upon the fulfillment of the formalities prescribed by the laws and regulations of the United States.
ART. V. Inventions, designs, trade-marks and copyrights duly patented or registered in Japan by citizens of the United States prior to the enforcement of the laws and regulations mentioned in Article I hereof shall without further procedure be entitled under the present convention to the same protection in Korea as is or may hereafter be there accorded to the same industrial and literary properties similarly patented or registered by Japanese or Korean subjects. Inventions, designs, trade-marks, and copyrights duly patented or registered in the United States by citizens or subjects of either high contracting party or by Korean subjects prior to the operation of the present convention shall similarly be entitled to patent or registration in Korea without the payment of any fees, provided that said inventions, designs, trade-marks, and copyrights are of such a character as to permit of their patent or registration under the laws and regulations above – mentioned and provided further that such patent or registration is effected within a period of one year after this convention comes into force.
Art. VI. The Japanese Government engages to extend to American citizens the same treatment in Korea in the matter of protection of their commercial names as they enjoy in the dominions and possessions of Japan under the convention for the protection of industrial property signed at Paris March 20, 1883 “ Hong ” marks shall be considered to be commercial names for the purpose of this convention.
ART. VII. The present convention shall be ratified and the ratifications thereof shall be exchanged at Tokyo as soon as possible. It shall come into force ten days after such exchange of ratifications.
In witness whereof, the respective plenipotentiaries have signed the present convention in duplicate, and have thereunto affixed their seals.
Done at the city of Washington the 19th day of May in the nineteen hundred and eighth year of the Christian era corresponding to the 19th day of the 5th month of the 41st year of Meiji..
ROBERT BACON. [ SEAL. ]
- TAKAHIRA. [ SEAL. ]
And whereas the said convention has been duly ratified on both parts, and the ratifications of the two Governments were exchanged in the city of Tokyo, on the sixth day of August, one thousand nine hundred and eight ;
Now, therefore, be it known that I, Theodore Roosevelt, President of the United States of America, have caused the said convention to be made public, to the end that the same and every article and clause thereof, may be observed and fulfilled with good faith by the United States and the citizens thereof. In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
Done in the city of Washington this eleventh day of August in the year of our [SEAL.] Lord one thousand nine hundred and eight, and of the Independence of the United States of America the one hundred and thirty – third.
THEODORE ROOSEVELT.
By the President : ALVEY A. ADEE,
Acting Secretary of State.
JAPANESE IMPERIAL ORDINANCES AFFECTING KOREAN PATENTS.
IMPERIAL ORDINANCE NO. 196.
Article 1. In regard to patents in Korea the patent law ° shall be followed; but in the said law the term “Empire” shall corresponding to “Korea,” “Patent bureau” to “Patent bureau of the residency-general,” “Courts of law” to “Residencies and the residency-general court,” “Local court” to “residencies,” and “Supreme court” to “Residency-general courts.” The term “Empire” mentioned in article 6 of the patent law shall correspond to “Japan” or “Korea” according to the application of this ordinance.
Article 2. This ordinance shall accord the same protection to Japanese and to Korean subjects with regard to inventions, and shall be also applicable to subjects or citizens of countries which do not exercise extraterritorial jurisdiction in Korea with reference to the protection of inventions. SUPPLEMENTARY ARTICLES.
Article 3. This ordinance shall take effect on and after August 16, 1908.
Article 4. Patents obtained in Japan prior to the operation of this ordinance by Japanese subjects, Korean subjects, or American citizens shall be regarded as patents obtained in Korea in accordance with this ordinance; but the term of the said patents shall correspond to the term of the same in Japan. A patentee mentioned in the preceding paragraph may not set up his patent against a person actually using in Korea at the time of the operation of this ordinance the product or the process of the invention in question, nor against the successor of such person.
Article 5. Inventions for which patents have been obtained in the United States prior to the operation of this ordinance by Japanese subjects, Korean subjects, or American citizens may be patented free of charge if application for patent be made to the patent bureau of the residency-general within one year from the date of operation of this ordinance; but the term of the said patent shall correspond to the term of the same in the United States.
a It appears from the following statement of applications filed and granted furnished by the American consul at Seoul, Korea, that the advantage of the protection afforded by this paragraph does not seem to be appreciated by citizens of the United States to the same extent as by the subjects of the Emperor of Japan:
DESIGNS.
IMPERIAL ORDINANCE No. 197.
Article 1. In regard to designs in Korea the design law a shall be followed; but in the said law the term “Minister of agriculture and commerce” shall correspond ° to “Resident-general;” “Patent bureau to “Patent bureau of the residency-general;” “Courts of law” to “Residencies and the residency-general court;” “Local courts” to “Residencies;” and “Supreme court” to “Residency-general court.” The term “Empire” mentioned in article/6 of the patent law shall correspond to “Japan” or “Korea. ” according to the application of this ordinance.
Article 2. Designs identical with or similar to the form or pattern of the imperial crest of Japan or Korea may not be registered. If a registered design is in contravention of the provisions of the preceding para graph, the registration thereof shall be invalid. A person who has discovered that a registered design falls under the provisions of the preceding paragraph may apply for a trial to the patent bureau of the residency- general for the purpose of invalidating the registration thereof.
Article 3. This ordinance shall accord the same protection to Japanese and to Korean subjects with reference to designs, and shall be also applicable to subjects or citizens of countries which do not exercise extraterritorial jurisdiction in Korea with reference to the protection of designs.
SUPPLEMENTARY ARTICLES.
Article 4. This ordinance shall take effect on August 16, 1908.
Article 5. Designs registered in Japan prior to the operation of this ordinance by Japanese subjects, Korean subjects, or American citizens shall be regarded as designs registered in Korea in accordance with this ordinance; but the period for the exclusive use of the said designs shall correspond to the period for the exclusive use of the same in Japan. An owner of a registered design mentioned in the preceding paragraph may not set up such registration against a person actually using in Korea at the time of the operation of this ordinance the design in question, nor against the successor of such person.
Article 6. Designs registered in the United States prior to the operation of this ordinance by Japanese subjects, Korean subjects, or American citizens may be registered free of charge if application for registration be made to the patent bureau of the residency-general within one year from the date of operation of this ordinance; but the term for exclusive use of the said designs shall correspond to the term for exclusive use of the same in the United States.
TRADE-MARKS.
IMPERIAL ORDINANCE No. 198.
Article 1. In regard to trade-marks in Korea, the trade-mark law ° shall be fol lowed; but in the said law the term ” Empire ” shall correspond * to “Korea;” “Minister of agriculture and commerce” to “Resident-general;” “Patent bureau” to “Patent bureau of the residency-general;” “Courts of law” to “Residencies and the residency-general court;” “Local courts” to “Residencies;” and “Supreme court” to “Residency-general court.” The term “Empire” mentioned in article 6 of the patent law shall be understood to means “Japan or “Korea, ” according to the application of this ordinance.
Article 2. Trade-marks bearing devices identical with or similar to the imperial crest, national flag, military or naval flags, or orders of merit of Japan or Korea, or the national flags of other countries, may not be registered. If a registered trade-mark is in contravention of the provisions of the preceding paragraph, the registration thereof shall be invalid. A person who has discovered that a registered trade-mark falls under the provisions of the preceding paragraph may apply for a trial to the patent bureau of the residency- general for the purpose of invalidating the registration thereof.
Article 3. This ordinance shall accord the same protection to Japanese and to Korean subjects with reference to trade-marks, and shall be also applicable to subjects or citizens of countries which do not exercise extraterritorial jurisdiction in Korea with reference to the protection of trade-marks.
SUPPLEMENTARY ARTICLES.
Article 4. This ordinance shall take effect on August 16, 1908.
Article 5. Trade-marks registered in Japan prior to the operation of this ordinance by Japanese subjects, Korean subjects, or American citizens shall be regarded as trade marks registered in Korea in accordance with this ordinance; but the period for the exclusive use of the said trade-marks shall correspond to the period for exclusive use of the same in Japan.
Article 6. With reference to merchandise which has borne, prior to the operation of this ordinance, a trade-mark entitled to protection in accordance with the provisions of the preceding article or a trade-mark similar to the same, the provisions of article 16 of the trade-mark law ” shall be applicable only to such persona as, after six months from the date of operation of this ordinance, give, sell, or store for sale the said merchandise.
Article 7. In regard to trade-marks registered in the United States prior to the operation of this ordinance by Japanese subjects, Korean subjects, or American citizens, no registration fees shall be collected if the owners of the said trade-marks apply for registration to the patent bureau of the residency-general within one year from the date of operation of this ordinance.
TRADE NAMES.
IMPERIAL ORDINANCE No. 199.
Article 1. In regard to trade names in Korea the commercial code and the code of procedure relating to noncontentious matters Shall be followed; but in the said codes the terms “cities, towns, and villages” (Shi-Cho-Son) shall correspond to “Fu and Gun;” “prefectures” (Fu-Ken) to “Do;” “Court of law” to “Residencies and the residency-general court;” “Japan” to “Korea;” and “Minister of juStice” to “Resident-general.”
Article 2. This ordinance shall accord the same protection in regard to trade names of Japanese and of Korean subjects, and shall be also applicable to subjects or citizens of countries which do not exercise extraterritorial jurisdiction in Korea with reference to the protection of trade names.
SUPPLEMENTARY ARTICLES.
Article 3. This ordinance shall take effect on and after August 16, 1908.
Article 4. The provisions of article 18 of the commercial code shall not be applicable to those trade names which have been used in Korea prior to the operation of this ordinance.
JAPANESE COPYRIGHT ORDINANCES
OFFICIAL GAZETTE, August 13, 1908.
We hereby sanction and cause to be promulgated the Korean copyright ordinance.
SIGN MANUAL
AUGUST 12, 1908.
( Countersigned. )
[ PRIVY SEAL.] MARQUIS Taro KATSURA,
Prime Minister.
VISCOUNT MASATAKE TERAUCHI
Minister for Foreign Affairs.
IMPERIAL ORDINANCE No. 200
KOREAN COPYRIGHT ORDINANCE
ARTICLE 1. With reference to copyright in Korea the copyright law (of Japan) shall be followed; but in the said law the term “Empire” shall be understood to mean “Korea” ; “court of law” to mean “residences and the residency general court.”
ART. 2. This ordinance shall accord similar protection to Japanese and to Korean subjects with reference to copyrights, and shall also be applicable to subjects or citizens of countries which do not exercise extraterritorial jurisdiction in Korea with reference to the protection of copyrights.
SUPPLEMENTARY ARTICLE
ART. 3. This ordinance shall take effect on August 16, 1908.
ART. 4. Copyrights possessed in Japan prior to the operation of this ordinance by Japanese subjects, Korean subjects, or American citizens shall be protected by virtue of this ordinance.
ART. 5. Japanese subjects, Korean subjects, or American citizens whose copyrights have been registered in the United States prior to the operation of this ordinance may apply for the registration of the said copyrights free of charge to the patent office of the residency general within one year from date of operation of this ordinance.
ART. 6. A person who without the consent of the holder of the copyright has produced, translated, or performed, or has commenced to produce, translate, on perform, in Korea prior to the operation of this ordinance the works of Japanese subjects, Korean subjects, or American citizens which are protected in Japan or the United States, may complete the same and sell, distribute, or perform the same during one year following the date of operation of this ordinance.
ART. 7. In the cases mentioned in the preceding article, the reproductions shall only be sold, distributed, or performed subject to the procedure determined by an ordinance of the residency general.
OFFICIAL GAZETTE, August 13, 1908.
We hereby sanction and cause to be promulgated the ordinance relating to the protection of rights of patents, designs, trade-marks, and of copyrights in the Province of Kwantung and in other countries where Japan may exercise extraterritorial jurisdiction.
SIGN MANUAL.
August 12, 1908.
(Countersigned. )
[PRIVY SEAL. ] MARQUIS TARO KATSURA,
Prime Minister.
VISCOUNT MASATAKE TERAUCHI,
Minister for Foreign Affairs.
GENERAL PROVISIONS REGARDING PATENTS, DESIGNS, TRADE-MARKS, AND COPYRIGHTS.
IMPERIAL ORDINANCE No. 201
ARTICLE 1. The validity of rights of patent, design, trade-mark, and of copyrights enjoyed in Japan by Japanese or Korean subjects shall extend to Japanese and Korean subjects in the Province of Kwantung and other countries where Japan may exercise extraterritorial jurisdiction.
ART. 2. The provisions relating to penalties in the patent law, design law, trade-mark law, and copyright law (of Japan) shall be applicable to Japanese subjects and Korean subjects in the Kwantung Province and countries where Japan may exercise extraterritorial jurisdiction. *
ART. 3. With reference to industrial property rights and copyrights enjoyed in Japan by subjects or citizens of countries other than Japan and Korea, the provisions of the two preceding articles shall be applicable only when such other countries afford protection of industrial property rights and copyrights to Japanese and Korean subjects, in foreign countries where the said countries may exercise extraterritorial jurisdiction, and when the said countries do not exercise extraterritorial jurisdiction in Korea with reference to the protection of industrial property rights and copyrights.
(Note – The two conditions are: (a) Reciprocal protection of industrial property wherever extraterritorial jurisdiction may be exercised, and (b) the surrender of such jurisdiction in Korea with reference to industrial property rights.
SUPPLEMENTARY ARTICLES
ART. 4. This ordinance shall take effect on August 16, 1908.
ART. 5. Any person who has on hand, at the time this ordinance takes effect, merchandise fraudulently bearing trade-marks owned by another person and entitled to protection by virtue of this ordinance, or bearing an imitation of such a mark, shall remove or cancel the said trade-marks or withdraw the said merchandise from market in China within six months after the operation of this ordinance.
ART. 6. Any person who, without the consent of the holder of a copyright, has reproduced, translated, or performed, or has commenced to reproduce, translate, or perform in China prior to the operation of this ordinance, works copyrighted in Japan or the United States by Japanese subjects, Korean subjects, or American citizens, may complete the same, and sell, distribute, or perform the same during one year following the date of operation of this ordinance.
THORVALD SOLBERG,
Register of Copyrights’
FORCE OF CONVENTIONS SIGNED WITH JAPAN.
The trade-mark conventions signed on May 19, 1908, by the United States and Japan, protect American patents, designs, trade-marks, and also copyrights against infringement in China and Korea by either Japanese or Korean subjects. These conventions extend the effect of the American-Japanese conventions of 1897 and of 1905, wherein, respectively, protection is secured in Japan to the above-named classes of American-owned property. The Japanese Government has given assurances in the sense that by the future interpretation of the existing laws and regulations it will henceforth refuse to entertain applications for wrongful registration of American rights and will annul such registrations previously made.
SUGGESTIONS REGARDING REGISTRATION.
Americans desirous of securing protection for their copyrights, patents, trade-marks and designs against infringement should promptly secure registration of the same at the Tokyo patent office. Such registration will protect them in China as well as in Japan anD Korea, provided, however, in the case of the latter country, that such registrations are to be made matter of record at the patent offices of the residency-general. Under the laws of Japan an application for the registration of a trade-mark, patent, or design, the applicant having no domicile in Japan, must show the appointment or a duly qualified agent resident in Japan, who must have been admitted to practice as a patent agent and entered on the register of the Japanese patent bureau in that capacity. (See Hall’s Manual of Japanese Patent, Trade-Mark, and Design Law, pages 1 and 2; also Article VI of the patent law and Article XX or the trade-mark law.) It is also required that this agent must be furnished with full power of attorney authorizing him to represent his client in all proceedings before the patent bureau, both as regards the original application and as regards any matter that may arise after the registration has been affected. (For a list of Tokyo patent lawyers, see appendix.)
PROTECTION OF “HONG,” OR COMMERCIAL NAMES, WITHOUT COMPULSORY REGISTRATION.
Article 4 of the treaty with Japan in relation to the protection of trade-marks, et cetera, in China, and article 6 of the same treaty regarding Korea, provide that “hong, or commercial names, in China or Korea shall enjoy the same protection as extended in the dominions and possessions of Japan under the convention for the protection of industrial property, signed at Paris, March 20, 1883.” reference to article 8 of this convention shows that ” * * * commercial names are entitled to protection without obligation of deposit * * * ,” or, in other words, without compulsory registration.