공공저작물의 활용을 위한 입법론적 고찰

Abstract

The rights of the copyright holder recognized by copyright law essentially assume the cost for creative incentives. The assumption is based on the concept of compensation equivalent to the creation, rather than available shares (public domain) all things. However, government works are naturally acquired in the course of the administration for the purpose of achieving administration not have been recognized as a tool of creative incentives. Thus, it is not right to grant equally comprehensive and exclusive rights by copyright laws on government works. In particular, the reason to provide the strict procedures and conditions of the use of state-owned property in the State Property Act is not to cause trouble to perform public purposes, and not to be a privilege for the licensee. Government works used by others except the case of administrative confidential or privacy infringement do not interfere with the conduct of public purpose, and can not be used exclusively. Thus, it is not reasonable to follow strictly principles of state-owned property. It makes sense that free use doctrine is the governing principle in the case of the use of these public works, not the rule of 'license' or 'contract'. Legislation concerning government works should be enacted in the direction of the management and increasing its effectiveness, and the rule on the 'use' of public works should be based on that citizens can actively utilize. Government works should be regarded not as "state-owned property" but as subjects that government manages for the people's active use. This thesis deprives these principles for government works and suggests the directions for legislation. First, it is necessary to greatly expand the range of works that are not protected by copyright law, including works that public officials of state agencies or local government officials created or acquired in the process of their job creation. For this purpose, it is desirable to amend the Article 7 of the Copyright Act. Second, another legislation is needed to implement comprehensively legislative principles for government works. Whether or not an exclusive right of the state to public works, legislation for systematic management of government works is necessary. If people who want to use government works should consult various ministries or public institutions to use the works, it is clearly against the 'free and fair use' doctrine. In addition, current management guidelines, such as regulations (directives) are not enforceable norms. It is difficult to expect public agencies active measurements to ensure the compliance of public authorities. In addition to these systematic problems, resolution for conflicts between statutes should be reflected in other laws. Such legislation should include the integrated process to build and manage government works database. Detailed provisions for copyright registration and identifying each of these relationships need to be prepared. Unified administration for government works is also needed. Clarifying the role and functions of the responsible agencies and the cooperation obligations of other state agencies should be provided. Finally, the reliable management system and specific norms that people can take advantage of government works should be established. It is necessary to develop the procedures for the use of government works from the perspective of users as well as public agencies which acquire and manage the information. Provisions on usage period, complaint procedures, prohibited acts, etc. should be enacted. For this purpose, it is needed to review the conditions for permitting the use according to author, the nature of the work, or the purpose of the use, and the process to enhance the fair use.