사법학 연구의 첨단 : 컴퓨터프로그램보호방법의 재검토
A Study on the Protective System of the Computer Program

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Issue Date
서울대학교 법학연구소
법학, Vol.48 No.1, pp. 105-128
컴퓨터프로그램컴퓨터프로그램보호법제3의 보호방법저작권법소프트웨어 특허Algorithm, the Computer Programs Protection Actcopyright Lawsui generis regimecomputer program, softwarepatent Law
In Korea computer programs are mainly protected by the Computer Programs

Protection Act, even though listed as a protectable subject matter of copyright

law. So computer programs are protected by sui generis legislation. But the

contents of the Computer Programs Protection Act are similar to those of

copyright law: the protection of computer programs is based on the mere fact of

creation (automatic protection), and registration is not a necessary prerequisite.

The term of protection is 50 years from the year following disclosure. The

Computer Programs Protection Act excludes Programming languages (characters,

signs and a system thereof as a means to express a program), Rules (a specific

convention on the usage of programming language in a specific program) and

Algorithms (a method of combining instructions and commands in a program)

from protection. Exclusion of Algorithms from protection reflects the idea/

expression dichotomy.

Apart from being protected by the Computer Programs Protection Act,

computer programs are also protected by the Patent Law. At first we protected

computer programs which met the so-called Freeman-Walter-Abele test. But now

we protected the Floppy Disk Claims and the computerized Method of Doing

Business as in US and Japan. Even in Japan they regard the computer program

as a thing itself. But the term of invention In Korea and Japan Patent Act is a

little different from that of US. In Korea and Japan Patent Act the INVENTION

means the highly advanced creation of technical ideas utilizing rules of nature.

So I think computer programs are not inventions except those which are applied

to some physical process or thing.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 48, Number 1/4 (2007)
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