earticle

영어

The concept of moral rights in the Copyright Act lies at the point where copyright and personality rights meet. A work of art embodies the personality of the author. The concept of moral rights emerged through evolution, and the present form reflects such beginning. This paper explores the historical origins of moral rights of an author, and seeks a primary reflection on the legal transformation appropriate to the modern society. This paper also aims to provide a starting point for resolving the following questions. First, how are moral rights accepted as a category of personality rights even though they are rights related to work? Second, why are moral rights emphasized in the Copyright Act of the continental law system rather than of the common law system? Third, why are copyrights divided into economic rights and moral rights? Moral rights seem to have evolved through the following steps. First, in the Greek Roman period, we can find the relation with personality rights in the contemporary society atmosphere that protects the honor and reputation of the author. Second, in the middle ages of the West, the perception that creation belongs to God was deeply rooted, and therefore, there was no active discussion of the personal interests of the author. Third, in the Renaissance period, the recognition an author as the creator became more prominent. Therefore, the concept of the authors publishing control and related legislation were accepted. Fourth, in the first half of the 19th century, the French court embodies the concept of moral right that corresponds to modern moral rights. The term “droit moral,” which refers to moral rights, was first used in France in the 1870s. Fifth, in the 19th century, the concept of moral rights was established through the precedents in courts and theories of legal scholars in Germany. In 1901 and 1907, the provisions of the moral right of the author were added to the laws. Later, Germany used the term “Urheberpersönlichkeitsrecht” to refer to moral rights. Sixth, Italy actively included moral rights in 1925 in its domestic law and attempted to incorporate its legal provisions into the Bern Convention amendment held in Rome. The 1928 revision of the Berne Convention has included the provision of the moral rights of the author. Therefore, moral rights finally became rooted at the international level. It is reasonable to regard the precedents of France in the first half of the 19th century as the historical origins of the concept of moral rights because they dealt with legal issues that are in line with the widely used moral rights at present. They clearly states that this right remains with the author even when economic rights are transferred. In particular, the court precedent of 1845 represented moral rights in a well-organized manner. The study of the historical origins of moral rights leaves the following implications. First, the notion of moral rights is hidden somewhere in Korean history, which emphasizes the scholars honor, a topic that can be researched in the future. Second, in accordance with the historical origin of moral rights, the Korean terminology of “personal rights of work” is not aligned with the copyright world. As with Germany or Japan, the “personal rights of author” is considered more proper. Third, there is a need to reflect on whether the moral rights concept formed in the 19th century environment, which is distant to the environment of the modern Internet and digital technology, still works.

한국어

저작인격권은 다음과 같은 단계를 거치면서 진화했다고 보인다. 첫째, 그리스ㆍ로마 시대에서는 저작자의 명예와 평판을 보호해야 한다는 당대의 사회 분위기 속에서 저작인격권과의 관련성을 찾아볼 수 있다. 둘째, 르네상스 시기에 와서, 창작자로서의 저자의 지위에 대한 인식이 높아지고 이러한 관점에서 저자에게 출판통제권을 주어야 한다는 개념이 생겨나게 된다. 셋째, 19세기 전반기에 프랑스 법원이 오늘날 저작인격권에 해당하는 구체적 권리에 대한 판결을 통해 현대적 저작인격권 개념을 구체화하게 된다. 넷째, 19세기 독일에서 법학자의 이론 및 판례를 통해 저작인격권 개념이 정착되고, 1901년 및 1907년 법률조문에 저작인격권 관련 조항이 포함된다. 다섯째, 이탈리아는 1925년 저작인격권을 조문화하고, 자국의 법률조항을 로마에서 개최된 베른협약 개정안에 반영하려고 시도한다. 1928년 수정 베른협약에 성명표시권 및 동일성유지권 조항이 추가되어 저작인격권은 마침내 국제적인 차원에서 뿌리를 내리게 된다.