위탁저작물의 업무상저작물성

Can 'a-work-made-for-hire' apply to 'a commissioned work'? : A comment modeled after the interpretation of Japanese Copyright Law

There are two international approaches on how to understand copyright: Approach of continental countries like Germany and France and Anglo-American approach of the U.S. and the UK. A difference between two international approaches is grounded on how to understand the basic conception of the copyright system like 'author' or 'a work'. As the Continental Approach considers creation mental work, author is confined to natural human being(so-called 'authorship'). The Continental Approach considers the work a mental production while Anglo-American approach considers the copyrighted work the subject of property right. As the Anglo-American approach does not confine 'a work' to 'a mental production', 'author' is not confined only to the creator. As a result, the employer can become "the author". The Korean Copyright Act defines that 'a work' means the creation to express human being's idea and feeling, while an author means a person who creates the work(§2). The Act also provides moral rights(§§11-13). Even though the property rights may be assigned to others, the author still retains the moral rights. From this perspective, the Korean Copyright system can be said to follow the Continental Approach. However, the Korean Copyright system exactly does not adhere to the same 'authorship' as the continental approach because it allows an important exception by granting the employer the author's right under the system of 'a work-made-for-hire'. The system allows the employer to obtain the author's right instead of an employee who actually creates the work. In considerations of allowing the employer to acquire the author's right, the Act also retains the Anglo-American feature, too. Up until now, the Korean case laws and comments have generally interpreted the requisite of the work-made-for-hire very strictly, which seems the interpretive reaction to taking into consideration that the provision of the work-made-for-hire is the exception of the authorship. However, as society and ecomony increasingly become specialized and complicated, all or some parts of the process creating a work increasingly are commissioned to other creators in the fields of music, commercial, computer program and broadcasting. Accordingly, who shall obtain the copyright of the commissioned work matters in deciding whether the commissioning party invests in production of the work. First, this article takes into consideration the legislative history of 'a work-made-for-hire' system under the Korean Copyright Act which generally retains Continental Approach. Next, referring to the interpretation of the Japanese Copyright Law, it examines whether the provision about a work-made-for-hire may apply to a commissioned work.