구 저작권법(1986년 개정 저작권법 이전 저작권법)상음반에 관한 권리자의 판단 문제 - 현행 저작권법상 음반제작자의 판단기준과의 비교를 중심으로 -

The term ‘phonograms’ under the current Copyright Act means what sound(referring to voice and sound; hereinafter the same shall apply) is fixed in a material object(excluding the one in which sound is fixed along with images), and the term ‘phonogram producers’ under the current Copyright Act means a person who makes an overall plan and takes charge of fixing sound into phonograms. Phonograms are the objects of neighboring rights under the current Copyright Act and the subjects of neighboring rights on the above phonograms are phonogram producers. On the other hand, phonograms were works and persons recording original works like musical works into phonograms were authors of derivative works under the Copyright Act enacted in 1957(hereinafter referred to as “the old Copyright Act”) which had been enforced before the Copyright Act amended in 1986. According to the addenda of the Copyright Act amended in 1986, phonograms made public under the provisions of the former Act(the old Copyright Act) before this Act enters into force shall be still protected as copyrights, not neighboring rights after this Act enters into force in July 1, 1987. Therefore, the determination on authors and copyright owners of the phonograms was very important about the phonograms made under the old Copyright Act, but there were no concrete guidelines for the above determination substantially. Because of the above problems, the determination on authors and the originality for works of the phonograms made under the old Copyright Act shall be more important under the current Copyright Act systems protecting phonograms as the objects of neighboring rights. In conclusion, this paper makes a study on problems on determining authors and holders of rights of phonograms on which the provisions of the old Copyright Act is applied. I think it is not reasonable that the courts decide that authors and holders of rights of the above phonograms shall be only a person who makes an overall plan and provides capital for fixing sound into phonograms like interpretations on phonogram producers under the current Copyright Act. Therefore, I think it is reasonable that the courts regard an author of a derivative work on a phonogram as a person who have made original contributions to produce a phonogram substantially, for example, a representative director in recording sounds on a phonogram, under the old Copyright Act by considering synthetically legislative intent setting up neighboring rights under the Copyright Act amended in 1986, recording circumstances under the old Copyright Act and the guidelines determining the originality about recording sounds on the phonograms made under the old Copyright Act, etc.