독일저작권법상 불행사로 인한 저작물이용권의 철회

It is permitted that an author has the right of revocation in Article 41 of the German Copyright Act for the non-exercising of exploitation right. Logically, rightof revocation based on non-exercise may apply only to an exclusive exploitation right. In the case of the exclusive right of publication (including online publication) and publication right (only for paper publication) in Korea, the owner of these rights stands under legal obligation for publishing according to Article 58 and Article 63bis of the Korean Copyright Act. If he violates the obligation, theowner of the author’s property rights may notify him of the termination of his exclusive right of publication under Article 60 and Article 63bis of the Korean Copyright Act. Therefore, the necessity to introduce the Right of Revocation applied only to the right of exclusive publication and the right of publication is not considered seriously. However, in contracting for establishing exclusive right of publication, we will need to introduce the right of revocation prescribed in Article 41 of German Copyright Act as long as the contract prescribes only the aspect of the right of publication of the licensee without his obligation to publish. Furthermore, it needs to consider the introduction of the right of revocation in the German Copyright Act, if Korea would introduce in the future the exclusive license system applied to all types of exploitations. Next, granting the right of revocation like the German Copyright Act in Korea, it is should be determined whether the right of revocation may apply to film works (See Article 90 of German Copyright Act). The reason why the German Copyright Act does not permit the right of revocation in cases of non-exercise of copyright film works is to guarantee the use of films that have significant production costs. However, the types of exploitation are too various; a new type of exploitation which has significant costs like the film works will appear in the near future depending on the change of technology or economic conditions. Also in case of the publication as the most general type of exploitation, the publication of art books or music books needs a significant production cost. Therefore, I think, there is a little doubt that exercising the right of revocation should be restricted to only film works. Lastly, there is a problem of who has and exercises the right of revocation. The right of revocation for non-exercise is, in principle, made to protect the author’s moral right to create work which is open to the public. However, if royalties are fixed in proportion to the amount of the exploitation of works, the author can protect his economic profits by exercising the right of revocation. Therefore, if only the economic aspect is emphasized, the right of revocation for non-exercise could be available to not only the author but also the holder of author’s property rights.