問15
頻出度★★★
知的財産権のうち, 権利の発生のために申請や登録の手続を必要としないものはどれか。
平成21年度 春期 ITパスポート試験 問15
ストラテジ系法務 › 知的財産権
This question's explanation and your answers so far.
解説
問 15
Incorrectア
A design right protects the visual design of an article — its shape, pattern, and color — as an industrial property right under the Design Act. It arises only after an application for design registration is filed with the Japan Patent Office, an examination is carried out, and the registration of establishment is completed. Merely creating a design does not create the right, so it cannot be said that no application or registration procedure is needed.
Incorrectイ
A utility model right protects a device relating to the shape, structure, or combination of articles (a so-called minor invention) as an industrial property right under the Utility Model Act. Although it uses a registration system without substantive examination, an application to the Japan Patent Office and the registration of establishment are still required, and the point that the right arises through registration is unchanged. Procedures are not unnecessary.
- ウ
正解 The correct answer is ウ. A copyright comes into existence automatically, with no procedure at all, at the moment a work such as a novel, a piece of music, a painting, a photograph, or a computer program is created. This is called the formality-free principle (automatic protection). It is a principle of the Berne Convention, to which Japan is a party, and Japan’s Copyright Act follows it. Therefore neither an application, nor a registration, nor a notice such as the © symbol is a condition for the right to arise. Japan’s Agency for Cultural Affairs does operate a copyright registration system, but it exists to make facts such as the date of first publication or the author’s real name public so that a transfer of the right can be asserted against third parties; it does not mean that copyright fails to arise without registration. In contrast, the other three choices (design right, utility model right, and patent right) are called industrial property rights, and each of them arises only after an application is filed with the Japan Patent Office and the registration of establishment is granted — a formality-based system. In short, copyright is the only one that becomes a right simply by being created, and that is the dividing line in this question.
Incorrectエ
A patent right protects a highly advanced creation of technical ideas utilizing the laws of nature (an invention) as an industrial property right under the Patent Act. It arises only after an application is filed with the Japan Patent Office, a request for examination is made, the examination is passed, and the registration of establishment is completed. It does not become a right automatically at the moment of invention, so it does not meet the condition in this question.
ここがポイント
- Copyright follows the formality-free principle — it arises automatically at the moment a work is created, requiring neither an application nor a registration (a principle of the Berne Convention). The copyright registration system is not a requirement for the right to arise; it exists for purposes such as asserting the right against third parties.
- Design rights, utility model rights, and patent rights (and trademark rights as well) are industrial property rights: they arise through an application to the Japan Patent Office and the registration of establishment — a formality-based system. Organize intellectual property questions around the contrast between copyright, which arises automatically, and industrial property rights, which require registration.
用語