저작권법상 판매용 음반의 의미에 관한 소고 = The Study about Phonogram Published for Commercial Purpose in the Section 29(1) of Korean Copyright Act

다국어 초록 (Multilingual Abstract)

Even though the term “phonogram published for commercial purpose (판매용 음반)” is very important in the scope of the copyright and the related right, there is no definition of the term in the Korean Copyright Act. Therefore, many people misunderstand its meaning and sometimes experts do too. Especially, Korean Supreme Court held that Starbucks which made phonorecords to perform in each Starbucks franchise for commercial purpose could not enjoy copyright limitation delineated in the section 29(1) of Korean Copyright Act because the phonorecords have never been sold to the public. However, Korean Seoul Appellate Court held that the performers and producers of phonograms have a right to receive reasonable remuneration from the Hyundai Department Store because it used phonograms in its store. Even though both courts reviewed the same term in the Korean Copyright Act, they differently interpreted the term. This paper reviewed whether court decisions might be reconciled or whether one decision should be changed in view of current Korean Copyright Act, legislative history of Copyright Act, comparison of foreign copyright act, International Treaties such as Rome Convention, WPPT. As a result of the review, the author thinks that because the Supreme Court decision did not consider the legislative history, International Treaties, etc. for the purpose of the section, its decision leads to wrong way for the interpretation and for avoiding the misunderstanding again, Korean Congress should change the term.