미술저작물의 저작인격권과 소유권의 충돌과 조화를 위한 해결방안 - 도라산역 벽화사건(대법원 2015. 8. 27. 선고 2012다204587 판결)을 중심으로 -

Abstract

In relation to the scrapping of the murals on the surface of the walls and columns inside the Dorasan Station building(hereinafter “Dorasan Station's Murals Case"), which had been produced and installed by the Plaintiff, Korean Supreme Court affirmed the High Court's decision(Supreme Court Decision No. 2012Da204587, decided August 27, 2015). In Dorasan Station's Murals Case, the main grounds of Supreme Court's decision are as follows: An author’s right of personality interests in his/her own work of authorship may not be deemed to be confined to those cases falling within one of the provisions for author’s personality rights of the Copyright Act, such as the right of disclosure (Article 11), the right of attribution (Article 12), and the right of integrity (Article 13). Thus, in cases where a scrapping of another’s work of authorship beyond a mere alteration has infringed upon the author’s legally protected personality interests, said act may be deemed an unlawful infringement on the author’s general personality rights, independent of whether it constitutes an infringement on the right of integrity. This Supreme Court decision can mean that the scrapping of the Dorasan Station' mural arts doesn't infringe upon artist's moral right of integrity under Article 13 of the Copyright Act, but infringe upon artist's personality right under Article 2(1) of the State Compensation Act. However, I think that we need to some simple but effective solutions to the conflict and harmonization between the author’s personality rights and the ownership of works of art. Just this Supreme Court's theory of interpretation isn't enough to balance between copyright and ownership. If you encounter problems like as ‘Art Vandalism', maybe you will find more certain solutions in a way that is easier and more convenient than this Supreme Court's current theory of interpretation, which is more complicated. And when following to this Supreme Court's theory, I can't find that there is no absolute standard of the critical difference between ‘some' and ‘all' scrapping in works of art. In short, this article suggests that the provisions such as Article 15 of Swiss Copyright Act and Article 106A(3) of US Copyright Act are accepted in our Copyright Act. I think that there is a need to have procedural rights attempting to seek expert opinion on any means to minimize the damage in their removal process or to notify and confirm the intention of the artist. In other words, the artist need to have access rights to protect his/her own works against unreasonable ‘all' scrapping and destruction of copyrighted works, like as ‘Art Vandalism', and to get them back at his/her own expense if there is a general, reasonable recognition of the urgent need.