위탁창작물의 권리귀속에 관한 소고

Abstract

The “creator approach” which stems from the modern ownership theory, holds that the person who created it is the person to whom it should be attributed. However, there are some necessity of considering other kinds of contributions. That is why there exist some exceptions for the “creator approach” in intellectual property law of most jurisdictions. Work made for hire and employee invention are typical exceptions for it. These days the condition of creating intellectual property has changed. Most of them are results of employment relationships or commissioned contracts. In case of employment relationships, the attribution of the intellectual property should be decided according to the rules of work made for hire or employee invention. But in most cases, there are no rules for the attribution of the commissioned intellectual property. So we have to come back to the “creator approach” regarding these kinds of intellectual property. In fact, there is little dispute with commissioned inventions, but there are different points of view regarding commissioned works. Some researchers insist that it would be better to extend the work made for hire rules, others offer giving authorship to the consignor as alternative. But it seems dangerous to admit a lot of exceptions because it damages our legal system of intellectual property which is standing on the “creator approach.”Although there are some cases to consider commissioners’ interest by assuring paid-up, non-exclusive license, it also should be limited to the extent necessary to achieve the purposes for which the commission was evidently made. For the rest we need to go back to the basic with the attribution of the commissioned intellectual property. It is necessary to think about the concept and the purpose of rules from a perspective of legislator when we face a unprecedented case.