동일성 유지권의 비판적 고찰

Abstract

Formally under article 13 of the Copyright Act, the author has the right to maintain the identity of the content, form and title of his work, in other words, the author is entitled to prohibit damages caused by unauthorized alteration, deletion or modification by a third party, this right is called as the right to maintain the identity or the right of integrity. In regard to the identity to be maintained, it is generally considered that there is no damage to the identity of the existing work in the form of correction of the wrong part of the grammar. The scope of the right is defined by the identity of the title, and the changes within the scope considered to be inevitable in light of the nature of the work and the purpose and form of its use is allowed as general reason for the limitation of the right to maintain the identity. The problem that is mainly discussed with respect to the right to maintain identity is the relationship between the right to maintain the identity and the right to make derivative works, the use of only a part of the work, the change or destruction of the tangible media of work. According to the Berne Convention or other countries' legislation, it is the integrity of the work, not the identity of the work, that is protected by the moral rights system. Only Japan and our country use the concept of sameness. If we amend Article 13, Paragraph 1 of our Copyright Act as "the author has the right to maintain the integrity of his work", these could be advantages that it can be judged as a normative element, and it is more suitable for the purpose of protecting the moral rights, the possibility of inclusive of ‘the right of revisions and additions’, and the flexibility to cope with the requirements of 'Honor and Deity'. In addition to the introduction of the concept of integrity, it is necessary to amend Article 13 (1). In this revision, it should be noted that the criteria for the private use exception should be presented, the justification of the parody and the linkage with the restriction of author's property rights. In order to maintain the original purpose of maintaining identity, it is necessary to review the provisions on inalienability and duration of moral rights, as well.