In dubio pro auctore

• 발행기관: 세창출판사
• 저자명: 계승균(Seung Kyoon, KYE)
• 간행물 정보: 『창작과 권리』2004년 가을호 (제36호), 117~148쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.09.01

영문 초록

The purpose of Korean Copyright Act(the "Act") is not to protect works of an author, but the rights of an author who created such works. To this end, so-called "in dubio pro auctore" doctrine is present, the meaning of which is as follows9; if translation of an author's works is ambiguous so that it is not clear whether the rights of the author should be protected, such translation will be construed in favor of the author. The core of this doctrine is to protect the rights of an author consistent with the intentions of the Act. This doctrine consists of two meanings. The first one is a small coin theory, in german "kleine Münze", which states an author's rights with respect to his works should be protected regardless of the quality of such works. In other words, the Act makes no distinguish between third rate pop songs or trash novels and Mozart or Goethe. The second theory is Another is the "theory of licensing or transferring with purpose", in german "Zweckübertragungstheorie", which states that the scope of a license is limited by the purpose of applicable license contract. The "in dubio pro auctore" doctrine is presently accepted by the Korean Supreme Court. However, in my opinion, the korean courts do not truly understand the true meaning of the doctrine. In particular, the true meaning of small coin theory is about establishing a threshold where protection the Act begins and ends. The small coin theory sets a minimum threshold for works' quality that deems the works to be protected under the Act ; if the works' quality is below such threshold, it is not to be protected by the Act. Such works should be governed by laws or regulations other than the Act, such as design laws or unfair competition laws.

목차

Ⅰ. 서언

Ⅱ. 작은 동전론(kleine Münze)

Ⅲ. 목적양도론(目的讓渡論)

Ⅳ. 결언

Abstract

키워드

kleine Mü nze Zweckü bertragungstheorie in dubio pro auctore