저작권계약의 ‘변경요구권’ 규정에 관한 연구

Abstract

As the “Cloud Bread” case clearly represents the current situation in Korea, there are numerous problems regarding copyright contracts between the creator and the user. The most critical issue among them is that there is no means for the creator to be compensated additionally for unpredictable huge economic gain due to the copyright work. Regarding this matter, Korean law on copyright contract has loopholes, unprepared for the rapidly changing environment with the recently enlarged culture content market and the change of paradigm in copyright issues. The Korean copyright law especially lacks provisions on copyright contract. Whereas the Court aims to achieve substantive justice in a case󰠏by󰠏case manner, in conflicts arising from copyright contracts, there seems to be a lack of judgments based on definite criteria or principle. Contrary to this aspect, EU countries such as Germany and France have various provisions to protect the creator in a substantially high level in the context of copyright contract. In Japan, the lack of provisions regarding copyright contract is similar to the Korean situation, but recently some Japanese scholars assert the introduction of right to ask for a modification of contract(best-seller clause), or termination right, bringing attention to this issue. Considering the possibility of legislating provisions protecting creator in Korean copyright law, right to ask for a modification of contract (best-seller clause) is deemed to be the pertinent solution to the problem of unfair situations arising after the contract is signed. We may apply this provision only to the situation where the problem of extreme unfair situations is arising after the contract is signed and make it as a minimum legal remedy to correct this unfair situation rather than leave the situation as it is or nullify effectiveness of copyright contract. Its legal basis can be drawn from the 'claim for increase or decrease in rent' or 'clausula rebus sic stantibus'. This provision should only be applied to the obviously unfair situation, where the contract amount is less than 1/3 of which the copyright holder deserves to be paid, and it also should be applied to regardless of the lump sum contract or proportional contract.