저작인격권 남용의 방지에 관한 연구 - 동일성유지권을 중심으로 -

초록

The purpose of this article is to find out a way in Korea Copyright Act(KCA) to prevent the possible abuse of the author’s right of integrity. There are two issues that this article tries to solve; first, whether the author’s right of integrity is being abused, and second, what legal solution the court or the legislature can provide. To give answers to the issues, this article first clarifies the legal interest that the right of integrity should protect. This article shows that the author’s right, as Immanuel Kant who first provided the underlying philosophical foundation for author’s right, is the right of an author to communicate his thought to the public, and therefore that it is only when the public is confused about, or misunderstand, the author’s thought that the right of integrity is infringed. This article also shows that the late 19th and early 20th French courts also required the ‘change of the author’s thought’ for the infringement of the right of integrity in the same vein with the theory of Kant. Current French courts also show the same attitude to the infringement of right of integrity, especially with regard to utilitarian works and parody works. This article argues that the KCA provides right of integrity far beyond the extent that is necessary for preventing the public from misunderstanding an author’s thought. This excessive protection raises the transaction costs of utilizing copyrighted works in an unjustifiable way, and turns the exercise of the right into an abuse of the right. To prevent the abuse of the right of integrity, this article argues that anti-trust regulation and the abuse of right theory under the Korea Civil Act have their own limitations. Finally, this article proposes an amendment to the KCA that requires the ‘misunderstanding of the author’s thought’ for the infringement of right of integrity.

키워드