저작권의 공동보유
Joint Authorship Differentiated from Co-ownership of Copyright under Korean Copyright Act

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서울대학교 법학연구소
법학, Vol.40 No2 pp.207-241
민법상 공동소유저작권의 원시취득저작권법상의 공동저작물 규정저작권공동보유
Rights and liabilities of joint authors illustrate one of substantial differences between Korean and American copyright system. Joint authors' copyright on their joint work may not be exercised without the unanimous consent of all the co-owners of copyright, and none of them may transfer his share or put into pledge without consent of the rest under the Korean Copyright Act. The requirement of unanimous consent in Korea is quite similar to the German one but contrasts with the American one under which each co-author is entitled to exploit the copyright himself or to license others to do so and each must account to the other co-authors for any profits earned. One of major features under the German and Korean copyright system which distinguishes themselves from the copyright system of the USA is their statutory provisions relating to moral rights of authors. The requirement of unanimous consent is interpreted as being due to the existence of moral rights: since moral rights and property rights are regarded as melted into copyright under the German copyright law, a co-author's exercise of copyright without the consent of other co-authors may result in infringement of copyright including moral rights of the others. By contrast, in the USA where there are not any statutory provisions for moral rights except for visual art, rights and liabilities of joint authors are arranged for their maximum benefit and, also, the requirement of unanimous consent is viewed as an obstacle to the maximum exploitation of jointly made copyright work. Has Korea accepted the concept of moral right in German style at the expense of possible economic benefit to joint authors? This essay did not satisfactorily come to an answer to the question why Korean Copyright Act has accepted the requirement of unanimous consent. It is clear, though, that moral rights under the Korean Copyright Act are separate rights from property right of authors: Accordingly, although unanimous consent may be necessary for the exercise of moral rights, it might have been more desirable and efficient for the exercise of property rights or economic rights of authors not to rely on the requirement of unanimous consent but upon the demands for the maximum benefit of authors and the general public. Since the relationship between moral rights and property rights of authors under the German and Korean copyright laws are different from each other, it is difficult to find out any reason why Korea has followed the German jurisprudence on joint authorship without due regard to the difference in the relationship between moral and property rights of authors. It is worthy of noting that Korean Copyright Act provides only for rights and liabilities of joint authors but not for co-owners of copyright or neighboring right generally. Thus, there arises an important question whether the statutory provision on joint authorship may or may not apply mutatis mutandis to co-ownership of copyright on a sole-authored work or neighboring right like performers' rights. It is submitted in this essay that co-ownership of copyright or neighboring right which is not originated from joint authorship should look to the statutory provisions on co-ownership in the Civil Code.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 40, Number 2 (2000)
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