假想空間(cyberspace)과 知的財産權의 保護

裵大憲 세창출판사 1997 창작과 권리 Vol.- No.6

2차적저작물 작성·이용 및 그 권리의 양도에 이용허락이 포함되는지 여부에 대한 법리 검토 - 대법원 2016. 8. 17. 선고 2014다5333판결을 중심으로

배대헌 경북대학교 IT와 법연구소 2018 IT와 법 연구 Vol.0 No.17

A derivative work may have its own copyright, provided it satisfies the requirement of originality, even though it is a work based on one or more preexisting works. Without the authorization for the exploitation of his/her preexisting works from a copyright holder, the derivative work is protected irrelevantly to the infringement of the adaptation right. The copyrightability for the derivative work is not linked to the non-infringement of the adaptation right under Article 5 of the current Korean Copyright Act. However the copyright holder of preexisting works may claim the damage for the copyright infringement, if there is an unauthorized exploitation for them. The following is the simplified of Supreme Court Decision 2014Da5333 ; a copyright holder(A) who produced an original work as well as its derivative work transferred only the derivative work to B, who later produced a new derivative work based on the previous derivative work without A's permission. A claimed the damage for the delict from unauthorized exploitation of the copyrighted original work, then B contended that the agreement for transfer of derivative work included the consent of the exploitation of it. Legal issue focused on the unauthorized exploitation of original work after the transfer of the derivative work. The Court concluded that the intention of parties should be made clarification by means of the interpretation of the transfer agreement even without the express license between transferor and transferee. This article examined that it cannot accept the relief from liability through seeking the intention of parties based on the circumstantial evidence without the express license, for the interpretation does not supersede the consent which is necessary to get the authorization for exploitation of original work. The primary test shall be whether there is express license or not. The protection of the adaptation right, which is exclusive under Copyright Act, is for striking a balance between authors and users and for keeping the invigoration of creation as well. The judicial decision should have reconsidered B's not being liable for unauthorized exploitation of copyrighted original work.

현행 저작권법상 ‘복제’ 정의의 변천에 따른 법리 검토

배대헌 경북대학교 IT와 법연구소 2017 IT와 법 연구 Vol.0 No.15

The word 'reproduction' literally means making a copy, close imitation, duplication of a picture, sound, writing, etc. The term 'reproduction' contains the meaning of the fixation in a tangible medium in each country's Copyright Act. The difference of two usages can be known when they are applied in the case of copying something whether or not in a material object. The definition of 'reproduction' was first introduced in Copyright Revision of 1986 in Korea, and provided that it was the duplication of copyrighted work with material object. It has been defined as "the fixation in a tangible medium or the duplication of copyrighted work with material object" since the Copyright Revision in 2000. The existing definition has an error as there are two types. The problem rises as two types of definitions are applied to cases, which results in different interpretation after classifying it as a fixation or duplication. The article explores the legal interpretation and the legislative method in order to solve the problems from the definition of 'reproduction' in Copyright Act of Korea. Legally speaking, the fixation in a tangible medium includes duplication, photocopying, recording, printing, and even copying to a hard-disk. The statutory language 'reproduction' should be interpreted only to the fixation in a tangible medium of expression rather than the duplication in one of the two ways based on the 'reproduction' definition. Also, it is necessary to revise the definition of 'reproduction' only to the fixation in a tangible medium, regardless of the duplication of copyrighted work with material object.

‘관련 산업의 향상발전’이 추가된 현행 저작권법의 목적규정 검토

배대헌 경북대학교 IT와 법연구소 2016 IT와 법 연구 Vol.0 No.13

The Purpose Section(the first Section) of Korean Copyright Act has been revised in 2009 that the ultimate goals are the development of the culture and ‘related industries.’ The previous Purpose Section paid clear attention to the development of the culture without ‘the related industries.’ It would seem to be nothing special that whether the phrase of ‘the related industries’ is added to the purpose of Korean Copyright. That is why copyright adheres to the related industries under the circumstance of expanding the newly emerging creative industries and their market in modern society. But in reality the addition of ‘the related industries’ to the Purpose Section has modified the fundamentals of Copyright Act, and we have to pursue dual goals for seeking the development of culture and industry after the Revision. The Purpose Section is not a decoration, but a starting point for legal decision and policy in order to protect the right of author and to promote the fair use of works. This article examines the existing Purpose Section of Korean Copyright Act, demonstrates analytical and problem solving. In light of the substance, the historical development of copyright law and the existing legislations related to the creative industries, it is right that the Purpose Section has to convert back to previous version of the revision in 2009, which is “The purpose of this Act is to protect the rights of authors and the neighboring rights and to promote fair use of works in order to contribute to the improvement and development of the culture.”

저작자보호의 관점에서 본 앤 여왕 저작권법(Statute of Anne)

배대헌 경북대학교 IT와 법연구소 2014 IT와 법 연구 Vol.0 No.9

Statute of Anne has been recognized the first copyright act, and a model statute on the right of author in terms of legislative history. While the Statute of Anne(hereinafter ‘the Statute’) has been regarded as the provisions which to keep the right of author, it was a kind of anti-trust law to regulate the monopolistic profit of the bookseller cartel, otherwise it was a law for the educational improvement of people according to the name of ‘Act for Encouragement of Learning’. Based on legal reasoning, the fact that the Statute was the first copyright act is controversial. There wasn’t any term of ‘copyright’, and also there was no provision for creativity, and for copyrightable subject-matter. The Statute was not for author, but for publisher(or copyright holder) and bookseller. The right that was the exclusive property of author’s manuscript has been transferred to them. Even established the statutory right for author by the Statute, it was ambiguous to keep the legal status of author. Until Donaldson v. Beckett(1774) which has ceased from the battle between the statutory right from the Statute and the perpetual right of common law, it was complicate to find the real meaning of copyright act in England. It meant there was not any author’s right for creativity(plus authorship). To say simple, the concept of Romantic authorship has played an important role in laying the foundation of modern copyright laws after second half of 19th century. In light of the author-centered framework of modern copyright act, the existing Korean Copyright Act has some troublesome issues, which are the disregard of author’s right and not-fostering creativity. Even over three hundred difference between the Statute and the existing Copyright Act, it is not surprising matter that there are some problems with respect to author’s legal status. That is to say, a metaphor is ‘the death of author and the rise of irrational business’.

공공정보, 공익에서 공유(public domain)로 옷을 갈아입다 - 공공정보의 활용을 위한 저작물 공유 문제 검토

배대헌 경북대학교 IT와 법연구소 2011 IT와 법 연구 Vol.0 No.5

Public sector information(PSI) is an important source of the information access in our information society. It is collected and produced by public organizations, is for the use on the variety of utilities, such as academic, commercial, and administrative objects. Generally PSI protected by copyright is limited to the public access without license agreement. The copyrighted PSI is a obstacle to the public domain, and is mainly provided for the public interest of public administration. For the free access of public information, they say that the copyright protection is not available for any work of the government like as the Copyright Act of USA. The US government cannot claim copyright in works produced by federal government employees in the course of their official duties. This article examines the legal concept of PSI, the copyright problems of PSI, and the legal theories of copyrighted government works. And also examines PSI should be for free access in information society, should be provided for the purpose of public domain.

‘잰걸음으로 나선’ 개인정보 보호법을 보완하는 논의 - 개인정보 보호법 개정 논의 및 관련법률 검토

배대헌 경북대학교 IT와 법연구소 2012 IT와 법 연구 Vol.0 No.6

The legislation of the Personal Information Protection Act(hereinafter 'PIPA') streamlined various Acts related personal information, and made the privacy right for the information subject reinforce. Albeit better than before, there are some articles to provide reasonable adjustment to make them clear what is to be achieved; firstly, the correction of legal terminologies and legal sentences for getting the legislative purposes of this PIPA, secondly, the harmonization between the PIPA and the other related Acts, based on PIPA which is the center for the protection of personal information, thirdly, the legislative consideration of the emerging 'right to be forgotten'. The 'right to be forgotten' was proposed by European Commission to make twenty seven EU member countries adopt their own regular right with respect to the personal date. This newly emerging right aims at the prevention of illegal collection and use of the scattered personal information on Social Networking Service(SNS), and on searching websites.

EU 단일특허와 특허법조약(PLT) 가입확대 등에 따른 글로벌 특허시스템 논의와 한국 특허법에 미치는 영향

배대헌 경북대학교 IT와 법연구소 2015 IT와 법 연구 Vol.0 No.11

A recent discussion and relating efforts with regard to patent laws in EU, USA, and WIPO are focused on establishing new regulations of their own Patent Law in order to reduce the time and cost on patent application and its examination. They are also interested on minimizing their patent litigation cost against infringement. In light of a global patent reformation, this simply means that an applicant is granted a right to patent with a little expenditure. Moreover, an adaptation to Patent Law Treaty(PLT) shows that each country tries to harmonize the procedural steps to patent prosecution. This article examines the impact of global patent system such as EU Unitary Patent, PLT Implementation in USA, and their discussion on the Patent Law Harmonization of World Intellectual Property Organization upon the Korean Patent Act. In addition, it also focuses on seeking the patent policy and the legal framework for Korean Patent Progress. This article is composed of six chapters; after the first chapter refers on the problem approach in this article, the second chapter on the patent policy and its regulation from EU Unitary Patent and Unified Patent Court. Third chapter referring the recent Patent Act reformation and the PLT implementation in USA, and the fourth chapter examines the existing Korean Patent Act which has adopted and revised according to some provisions of PLT, even though Korea is not a member country of it. And the fifth chapter looks the impact upon the existing Patent Act with the eyes of global patent system and its relating patent policy, finally it gives a conclusive opinion to the progressive direction of existing Patent Act.

In re Bilski에서 만난 ‘숲과 나무’論

배대헌 경북대학교 IT와 법연구소 2010 IT와 법 연구 Vol.0 No.4

The newly emerging technologies have been expanding the scope of the patentable subject matter. An article that is remarkable is the business method based on the information technology(IT) since 1980s. For many years, the method of doing business has been not patentable. However the patent on computer implemented methods for doing business was granted in the State Street Bank v. Signature Financial Group(1998). The business method patent(BM Patent) is a class of process patents which are methods of doing business such as electronic commerce,online banking, electronic learning and so on. At the beginning, BM Patents were relatively so unrestrained that could build a great paved road of IT industry, focused on for the last two decades. Nonetheless,the pro-patent policy of the Reagan Administration and the grant of BM Patent have been highly contentious. In re Bilski of United States Court of Appeals for the Federal Circuit in 2008 was a decision on the applicable test to the business method,which stated as the machine-or-transformation test(MoT Test). De facto, this decision invalidated the test from State Street Bank v. Signature Financial Group, and is open a complicated world of the process patent arena. If the MoT Test is applicable to the other inventions such as claims to medical(or treatment) methods, there will be a deep impact from the previous implication of the patentable subject-matter. This article concerns the legal theory and policy with respect to the process patent that seeing the industrial progress(or national wealth from innovation) for patentable subject-matter through Bilski case, as the former is forest, and the latter tree.

공공저작물․공공정보의 이용과 관련한 최근의 논의내용 검토

배대헌 한국저작권위원회 2012 계간 저작권 Vol.25 No.1

공공저작물, 공공정보 및 공공데이터베이스는 모두 넓은 의미의 공공정보에 속하지만, 독창성을 지닌 대상에 한하여 저작권으로 보호한다는 점에서 앞의 공공저작물과 뒤의 두 대상이 서로 다르다. 또한, 공공정보 가운데 공공데이터베이스를 특정하고 있는 것은 이들 두 대상 가운데 공공데이터베이스를 공유․활용되는 주된 대상으로 살펴보려는 취지가 있음을 알 수 있다. 이러한 차이점을 반영하여 국가정보화기본법, 콘텐츠산업 진흥법 등에 공공정보가 공유․활용될 수 있도록 근거조항을 마련하였고, 정부는 이를 구체적으로 시행하는 데에 필요한 지침인 공공정보 제공 지침 및 공공저작물 저작권관리 지침을 고시하였다. 그런데 공공저작물․공공정보의 접근․이용과 관련하여 이의 제공․이용이 제대로 이루어지지 못한 최근의 사정 하에 이 글은 이용자에게 편익을 제공한다는 관점에서 논의대상에 관한 법령의 해석론과 나아가 입법론적 접근을 이끌어내는 데에 필요한 논의와 그 방향제시를 꾀하고자 하였다.