著作權法上 映像著作物의 法的 保護

Abstract

Korean Copyright Act(hereinafter, ‘Act’), in Article 2 (xiii), defines cinematographic works as “creative works, with or without sound, consisting of sequences of moving images which are intended to be shown by the use of machines or electronic equipment, in which the works are embodied”. The essential characteristic of all the material objects, such as films or TV dramas, falling within the cinematographic works is the existence of ‘a sequence of moving images’. Unlike other works, fixation is expressly required for cinematographic works as defined by Article 2 (xiii). Nowadays, new types of works, such as video games or online games, also can qualify as cinematographic works. Although it is possible for video games to qualify as cinematographic works, it is necessary to consider some legal issues whether the video games are original enough, or possess ‘a sequence of moving images’ to qualify as cinematographic works. If the originality criterion is left aside, what it is perhaps important to examine is whether video games possess the basic characteristics of a cinematographic work, in other words whether their interactivity and the intervention of players are enough to preclude any real sequence of images. On the other hand, cinematographic work is a collaborative medium with many creative people contributing to the final products. The question of ownership of rights in cinematographic works has long posed problems in the national and international regulation of rights in this area. In order to cover the question of ownership of the copyright in the resulting cinematographic works, the Act have introduced a legal presumption in favor of the maker of cinematographic works, in Article 99～101. The Act also stipulates that a legal entity is an employer who is deemed to be the author of a work made by his employee in the course of performing his duties, in Article 9. Then, the development of film industry in Korea poses a question as to the authorship of a cinematographic work produced in the course of performing their duty by modern authors(ex, director, etc.) of a film production company. The position as regards authorship of a cinematographic work is somewhat more complicated, this complexity proceeds from ambiguities between Article 9 and Article 100 (1). According to Article 2 (ii), since film-making requires the co-operation of many persons, there may be either a joint copyright in a cinematographic work for all of the co-authors or a separate copyright in it for each of the principal collaborators in his own creative contribution. Article 100 (1) stipulates that the right of commercial exploitation of a cinematographic work can only be assigned to maker of cinematographic works by presumption of law. The legal issues and business practices which this paper deals with are as follows : Firstly, the basic aspects of copyright issues involving the concept of cinematographic work, the requirement for some particular kind of fixation for cinematographic work. Secondly, the analysis of the structure of cinematographic works manufacturing process, especially concerning the right to cinematize a work. Thirdly, the intial ownership of cinematographic works in relation to Article 100 (1), 2 (ii), or Article 9. Finally, the right of maker of cinematographic works and the term of cinematographic works.