저작권법상 저작재산권자 등의 공연권 제한 사건 - 헌법재판소 2019. 11. 28. 2016헌마1115, 2019헌가18(병합) 결정 평석

Recently, the Korean Constitutional Court held that the Para. 2 of the Art. 29 of the Korean Copyright Act is not in violation with the Korean Constitutional Law (Decision No. 2016HunMa1115, 2019HunGa18(Consolidated) which is rendered on November 28, 2019). This is a review on the said decision. For the evaluation on this decision, I reviewed the history of the Korean Copyright Act, then moved to the ‘minor reservation doctrine’ in international treaties, relevant foreign laws, relevant dispute settlement cases in WTO, the review of the WTO on national intellectual property legislations, and scrutinized the 3 step tests in detail. Upon these work, I presented my opinion, and made some comments mainly on the majority opinion of the said decision in light of the principle of no excess of the Korean Consitutional Law. Compared to other IP laws of advanced states, it is very difficult to find a similar limitation on copyright as found in the Korean Copyright Act with respect to the public performance of commercial phonogram. I think that the relevant provision of Korean Copyright Act can hardly pass the 3 step tests in international treaties. Furthermore, the relevant provision regarding public performance of commercial phonogram in the Korean Copyright Act is likely in violation of proportionality test which is built in the Korean Constitutional law. Unlike the majority view of the decision of the Constitutional Court, this article concludes that the Para. 2 of the Art. 29 of the Korean Copyright Act is unlikely in line with the Constitutional law of Korea.