업무상저작물과 직무발명 보호제도에 관한 비교법적 연구

A Comparative Study of Employee Inventions and Works-Made-For-Hire Regimes in Korea, U.S., Great Britain, and Germany

Regulations on employee inventions and works-made-for-hire have gained significance due to their impact on the protection of author's or inventor's rights, the stimulation of creative activities, as well as the cultural and industrial advancement for one's nation. This study attempts to find solutions for problems residing in Korea's regulatory system pertaining to employee inventions and works-made-for-hire by comparing with the U.S., Great Britain, and German systems. In particular, the fundamental problem of 'employer principle' in Korea's works-made-for-hire regime in the Copyright Act is examined in depth and alternative regimes are discussed as possible solutions. Generally, most of countries adopt the 'inventor principle' for their employee invention regime as the patent system has strong economic utility characteristic in itself and registration system which provides means for publication. For example, Korea, U.S., and Germany has adopted the 'inventor principle' which initially provides the rights in invention to the inventor. However, whereas the U.S.'s employee invention system only needs pre-invention assignment agreement to transfer ownership in the invention from the inventor to the employer, the Korean and the German system additionally requires notification procedures. The Great Britain system provides exceptions for employee inventions, in which the original rights in the employee invention belong to the employer from the very beginning. For works-made-for-hire, most of the nations, except for Germany, have adopted the 'employer principle' to facilitate the usage of the intellectual property. The German legal system only recognizes a natural person as the author of a work, thus works-made-for-hire regime does not exist in that system. Thus the employer can only exploit the work with exclusive or nonexclusive license from the author. Korea's worksmade- for-hire regime follows the U.S. regime in that both nations have adopted the 'employer principle'. However, there are significant differences between the two systems because the U.S. system designates a list of commissioned works as works for hire and excludes author's moral rights from such works. The significant problem with the Korean works-made-for-hire regime is that both intellectual property right and author's moral rights belong to the employer as the employer takes on the position of the author. The Great Britain provides an exception for works-made-for-hire in its 'author principle', so that if the requirements are met the rights in the works belong to the employer. However, in the Great Britain regime the creator of the work retains the authorship and only the copyright belongs to the employer. Thus the Great Britain regime separates the authorship from the intellectual property right holder. As we exploited the problem of Korea's works-made-for-hire regime, where the employer enjoys both intellectual property rights and author's moral rights, the Great Britain's regime provided a simple and straightforward solution for this problem. A new system that reflects the Great Britain's regime which provides appropriate protection for authors for works-made-for-hire should be studied in depth.