구 저작권법 제29조 제2항, 제76조의2 및 제83조의2에서 규정하는 ‘판매용 음반’의 개념과 의미

Abstract

The objective of this paper is to examine the concept and meaning of ‘phonogram published for commercial purpose’ (hereinafter ‘commercial phonogram’) by evaluating the existing arguments and legal characteristics of Article 29(2), 76bis and 83bis of the former Korean Copyright Act (hereinafter ‘FKCA’). The concept and meaning of ‘commercial phonogram’ is very important in the scope of the copyright and the related right. Therefore, this paper also reviews the international treaties pertaining to the meaning of ‘phonogram’ and ‘commercial phonogram’. Article 29(2) of FKCA provides that commercial phonogram may be played back for the public, if no fee is charged to the audience, except in the case as set forth by Presidential Decree. Article 76bis and Article 83bis of FKCA provides that any person who gives a public performance by making use of a commercial phonogram shall pay a reasonable remuneration to the performers and producers of phonograms. Korean Supreme Court’s decisions, however, did not show a consistent interpretation about the concepts of commercial phonogram. While Korean Supreme Court held that Starbucks which made phonograms to perform in each Starbucks franchise for commercial purpose could not enjoy copyright limitation delineated in the Article 29(1) of FKCA because the phonograms have never been sold to the public, the same Supreme Court held that the performers and producers of phonograms have a right to receive reasonable remuneration from the Hyundai Department Store because it performed publicly by making use of commercial phonograms in its store. The Court saw phonograms as a tangible matter such as CD in ‘Starbucks’ case. But the same Court saw that phonograms mean digital sound recording stored on computer DB system. This paper considers whether Korean Supreme Court’s interpretation of ‘phonogram’ and ‘commercial phonogram’ is in accordance with the definition of Rome Convention and WPPT. This perspective is needed to give the over-all view of copyright limitations(Article 29(2), 76bis, 83bis) which each cases surrounding commercial phonogram may not provide. In conclusion, this paper interprets systematically the concept of ‘commercial phonogram’ provided in Article 29(2) is identical to ‘commercial phonogram’ provided in Article 76bis and 83bis. This paper also emphasizes the necessity of the revision of Presidential Decree