국제 저작권침해소송에서 베른협약 제5조 제2항 적용의 문제점

In international copyright infringement litigations, Korean district courts and high courts employ either Article 5 (2) of the Berne Convention for the Protection of Literary and Artistic Works (hereafter referred to as the Berne Convention) or Article 24 of the Korean Private International Law Act as a conflict-of-laws rule. The direct application of Article 5 (2) of the Berne Convention, however, not only has theoretical shortcomings but also complicates the choice of law rules in practice. First, although Article 5 (2) of the Berne Convention is often claimed to be a conflict-of-laws rule, this interpretation is still controversial; even those who support this interpretation have different opinions in terms of the scope of the rule. Second, it is debatable whether Article 5 (2) of the Berne Convention is a self-executing provision that can be applied by Korean courts directly. Third, the Berne Convention is a copyright treaty; thus, Article 5 (2) of the Berne Convention cannot serve as a conflict-of-laws rule in the international infringement of neighboring rights. Therefore, it would be best to apply Article 24 of the Korean Private International Law Act to determine the applicable law in international copyright infringement lawsuits filed in Korean courts.