2차적저작물 작성·이용 및 그 권리의 양도에 이용허락이 포함되는지 여부에 대한 법리 검토 - 대법원 2016. 8. 17. 선고 2014다5333판결을 중심으로

Abstract

A derivative work may have its own copyright, provided it satisfies the requirement of originality, even though it is a work based on one or more preexisting works. Without the authorization for the exploitation of his/her preexisting works from a copyright holder, the derivative work is protected irrelevantly to the infringement of the adaptation right. The copyrightability for the derivative work is not linked to the non-infringement of the adaptation right under Article 5 of the current Korean Copyright Act. However the copyright holder of preexisting works may claim the damage for the copyright infringement, if there is an unauthorized exploitation for them. The following is the simplified of Supreme Court Decision 2014Da5333 ; a copyright holder(A) who produced an original work as well as its derivative work transferred only the derivative work to B, who later produced a new derivative work based on the previous derivative work without A's permission. A claimed the damage for the delict from unauthorized exploitation of the copyrighted original work, then B contended that the agreement for transfer of derivative work included the consent of the exploitation of it. Legal issue focused on the unauthorized exploitation of original work after the transfer of the derivative work. The Court concluded that the intention of parties should be made clarification by means of the interpretation of the transfer agreement even without the express license between transferor and transferee. This article examined that it cannot accept the relief from liability through seeking the intention of parties based on the circumstantial evidence without the express license, for the interpretation does not supersede the consent which is necessary to get the authorization for exploitation of original work. The primary test shall be whether there is express license or not. The protection of the adaptation right, which is exclusive under Copyright Act, is for striking a balance between authors and users and for keeping the invigoration of creation as well. The judicial decision should have reconsidered B's not being liable for unauthorized exploitation of copyrighted original work.