1957년 저작권법상 음반에 관한 녹음의 창작성 판단 및 저작자의 인정에 대한 비판적 고찰 - 대법원 2016. 4. 28. 선고 2013다56167 판결의 비판을 중심으로 -

Abstract

Supreme Court recent decision(Supreme Court Decision 2013Da56167 Decided April 28, 2016, hereinafter referred to as “the subject decision”) concerns legal principles related to determining the originality of sound recording and acknowledgement of an author on phonograms under the copyright act enacted in 1957(hereinafter referred to as “the old Copyright Act”). The subject decision states that sound recording doesn’t have originality but the old Copyright Act regards it as original action and an author on phonograms is a phonogram producer who makes an overall plan and takes charge of fixing sound into phonograms. Therefore, the subject decision applies interpretations on phonogram producers under the current Copyright Act to the provisions of the old Copyright Act identically. I think that the subject decision is not reasonable since it goes against the legislative intent of the old Copyright Act that is to protect phonograms as works. Therefore, the subject decision can be criticized based on regarding a person who have not made original contributions to produce a phonogram substantially as an author of a derivative work on a phonogram since the term “author” meant a person who has created a work and a phonogram were a derivative work under the old Copyright Act. And it is also contradictory that the subject decision regards sound recording as original action but determines that sound recording does’t have originality under the old Copyright Act. In conclusion, this paper makes a study on the subject decision critically based on the above and also analyses the difficulties in determination of the subject decision.