응용미술의 저작물성 판단기준

• 영문명: A Study on a standard of judgment of the copyrightability of works of applied art:
• 발행기관: 세창출판사
• 저자명: 차상육(Sang-Yook Cha)
• 간행물 정보: 『창작과 권리』2006년 겨울호 (제45호), 66~124쪽, 전체 58쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

The recent amendment to the Copyright Act, which became effective 1 July 2000, provides the copyrightability of works of applied art, including design and the definition of works of applied art(§2ⅺ-ⅱ) was made, and the artistic works clause of copyright act(§4①ⅳ) was revised. Therefore, in reality, for the most part of categories of works of applied art can be protected by the current copyright law, by satisfying the 'capability of mass-production' test and the 'separability' test, without the 'independent, artistic feature or value' test. Accordingly it should not be refused to protect works of applied art since they are designed for articles, including the design of a useful article. Recently(in 2004), Supreme Court of Korea declared that the design of so-called "Hiddink Necktie" is copyrightable(currently, reiterately appealing to the Supreme Court). The Copyright Act, which was first enacted in 1957, have not protected works of applied art, with the exception of work of artistic craftmanship. In the 1986 Amendment of the Copyright Act, works of applied art was included as a kind of artistic works. In 1996, Supreme Court of Korea declared that the design of so-called "Daihan Textile('Le Desire' and 'Le Basket')" was not copyrightable by measuring the qualification for the protection of works of applied art based upon the 'independent, artistic feature or value' test. And thereafter in many cases the courts have denied the copyrightability of the industrial design on that ground. In conclusion, in spite of the adoption of the 'separability' test in our copyright system, the theory of separability of US Copyright Act is not yet sufficent and persuasive to formulate the workable standard to fit all situation. And it needs some specifical cautions against using the theory of 'conceptual separability'. In this regards, from now on it is necessary to review whether there is any other well-functioning solution to protect works of applied art, including design, for properly coping with the problems resulting from double protection with the design right.

목차

Ⅰ. 서설

Ⅱ. 응용미술의 의의 및 분류

Ⅲ. 응용미술에 대한 저작권법과 디자인보호법의 중첩적 보호문제

Ⅳ. 저작권법의 변천에 따른 응용미술의 보호기준

Ⅴ. 현행 개정저작권법상 응용미술저작물의 성립요건

Ⅵ. 결론

Abstract

키워드

works of applied art design artistic craftmanship artistic works capability of mass-production test separability test independent artistic feature or value test 'Hiddink-necktie' 'Daihan textile'