고아 저작물과 저작권법의 목적 - 구글 도서 프로젝트에 대한 분석을 포함하여

Abstract

An orphan work is defined as a situation where the owner of copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires the permission of the copyright owner. Recently, an orphan work has attracted attention due to the Google book project. However, the Google book project is just one example of many cases where copyrighted works cause problems to be used in the industry. If someone wants to use copyrighted works, he/she has to have permission from owners of copyrighted works in advance. However,it is usually hard for a potential user to find out a owner of a copyrighted work due to inadequate information and the change of ownership during copyright term. Moreover, extension of copyright term accelerates such difficulty. Google book project is a plan to digitalize all books in the world. The first problem that Google met was to obtain permissions from each right holder. The conflicts between Google and right holders developed into a law suit. Right holders claimed copyright infringement, but Google insisted non-infringement based on fair use. The case finally ended with preliminary settlement which was amended later. However, ultimately, the settlement cannot resolve orphan work problems and the U.S. Copyright Office issued a Report on Orphan Works. This Copyright Office's recommendation were incorporated into the Orphan Works Act of 2006, Copyright Modernization Act of 2006 and Orphan Works Act of 2008, but were never adopted as law. Korean copyright law has a compulsory license clause for orphan works and orphan works problems have received less attention in Korea than in the U.S. However, that does not mean that the compulsory license clause has no problem at all. Recently, Korean copyright law was amended to include industrial development as its purpose. Regardless of plausibility of industrial development as a copyright purpose, copyright law must increase user's accessibility to copyrighted works in order to accomplish its purpose, industrial development. Accordingly, the compulsory license clause for orphan works shall be reviewed from such a perspective.