2차적저작물의 개념 및 법적 취급에 관한 검토

A Study on the Concept and Legal Treatment of Derivative Works

This paper conducts a comparative review of derivative works defined by the Copyright Act and of dependent inventions by the Patent Act, and then makes an analysis of some related interpretative and legislative problems. To begin with, derivative works are those with the originality in their literal expressions by means of the original works' consisting of non-literal expressions. However, if they have substantial similarity in literal expressions, they cannot be referred to as the derivative works even though they have remarked creative elements. Next, the use and change of the works can be regulated by the right of reproduction or the right of the production of derivative works. The right to preserve the integrity should be limited only to the case which changed works are used as though they were the original works. Finally, the Right of the Production of Derivative Works should be restricted in order for a Derivative Works (for instance, one that causes a new demand that has not been expected by its original author) to be produced and exploited without permission by the original author. It suffices as incentives that the original author can clarify his or her own originality and earn royalties therein.