소프트웨어개발계약과 권리의 귀속

At the first time, one of Supreme Court cases made me study about the issue discussed here-onto. It relates to the attribution of copyright in software development contract, especially in the existence of special agreement. Despite the special agreement, a copyright is held to be owned by creator herself at the very time of creation of the work. And the special agreement could be construed as an assignment of all copyright except personal rights. But it makes the time of assignment earlier, for example at the time of development completion. Here this paper takes a look at some related issues as followings; ① what is legal nature of the contract in case where a client makes software development contract with a developer, ② whether Civil Act can apply to the contract, ③ what means the special agreement providing acquisition of all rights by client, ④ how can the special agreement be constructed in void of the agreement, ⑤ whether the Article 5 of Computer Program Protection Act can apply to such a development contract between parties in special relationship. This paper tries to harmonically deal with the above issues in the aspect of civil law and intellectual property law related to software. In conclusion, a software development contract can be considered as a contract for work in many cases but its legal nature can vary according to real facts. The Civil Act applies to a software development contract as a contract for work but tangible-related provisions will be excluded. A special agreement will be void under two imperative provisions of Computer Program Protection Act. That is, Article 2 and Article 7. However, it can be constructed as another meaning, such as the assignment of rights or the time of copyright acquisition. From my broader perspective on the Article 5 of Computer Program Protection Act, the provision can be applied to a software development contract. Finally, this paper provides a systematic construction and reasoning of software development contract.