Moral rights have been established as a legal mechanism to protect the personal connection between a creator and their work, based on the premise that an author’s personality is inherently reflected in their creation. Rights such as the right of div...
Moral rights have been established as a legal mechanism to protect the personal connection between a creator and their work, based on the premise that an author’s personality is inherently reflected in their creation. Rights such as the right of divulgation, the right of attribution, and the right of integrity serve as tools for authors to concretize and control the expression of their personality through their work, and they possess a distinct legal nature separate from economic rights. However, a close examination of how these rights operate under the Korean Copyright Act reveals a multilayered gap between the rights as formally declared by the legal system and the practical realities of their exercise by creators.
Since its enactment in 1957, the Korean Copyright Act has largely adopted the continental European concept of copyright, particularly from countries such as Fracne and Japan, framing moral rights as natural rights. At the same time, due to developments such as trade agreements with the United States in the 1980s, utilitarian elements from the common law tradition have been introduced. Consequently, the current legal structure of Korean copyright law embodies a hybrid system in which elements of both natural rights theory and utilitarianism coexist. In particular, although moral rights are, in principle, non-transferable and closely tied to the author’s personality, in practice, there are frequent instances in which the exercise of these rights is restricted or effectively excluded, regardless of the author’s intent.
This thesis critically analyzes the structural contradictions and interpretive inconsistencies within the Korean moral rights regime and seeks to identify the interpretive principles necessary to ensure that moral rights function as substantive rights for creators. Chapter II offers a comprehensive historical overview of the development of moral rights, beginning with ancient Roman ideas of authorship, through the legislative history of the 1710 Statute of Anne in England, and continuing with the legal systems of France and Germany. It also presents a comparative analysis of the moral rights systems in France, Germany, the United States, the United Kingdom, and Japan, focusing on the content of rights, duration of protection, the possibility of transfer or waiver, and the recognition of posthumous moral rights.
Chapter III turns to Korea’s moral rights system, analyzing its legislative background and structure through the Copyright Acts of 1957 and 1986. It then examines the current legal framework in terms of the definition and function of moral rights, their status within the broader copyright system, the substantive content of the main rights, the nature and manner of their exercise, and other means of protecting the author’s personality.
Building upon these analyses, Chapter IV offers a critical assessment of whether the current Korean moral rights regime effectively protects creators’ rights. This includes an inquiry into whether the Korean Copyright Act is primarily grounded in the natural rights theory of the civil law tradition or the utilitarian principles of the common law. The chapter also scrutinizes how the principle of inalienability operates in practice, and closely examines the interpretation and application of individual moral rights—such as the right of divulgation, right of attribution, and right of integrity.
In light of these issues, the thesis emphasizes the need to establish an interpretive framework that aligns with the essence of moral rights within the existing legal system. Moral rights must function not merely as declarative rights, but as effective tools for creators to exercise personal control over the dissemination and treatment of their work. To achieve this, interpretation should adhere closely to the natural rights theory and the principle of inalienability.
In conclusion, despite the rapid evolution of technology and changes in societal perception, moral rights must continue to serve as a foundational component of copyright law—with the creator at its center. Even in the face of emerging creative environments involving artificial intelligence and automated content generation, the interpretation of moral rights must consistently reflect their natural and personality-based foundations. This is not simply a matter of reconciling current doctrinal inconsistencies; rather, it is a foundational step in ensuring that moral rights remain legally viable in the complex creative landscape of the future. For moral rights to operate as substantive rights, their legal structure and interpretation must remain faithful to a creator-centric logic—thereby securing the overall coherence and legitimacy of copyright law.