민법의 관점에서 본 저작권 신탁의 법률관계 - 대법원 2006. 7. 13. 선고 2004다10756 판결 및 대법원 2012. 7. 12. 선고 2010다1272 판결 -

In this article, two Supreme Court decisions on the legal relationship of copyright trust are analyzed from the perspective of civil law. The main conclusions are as follows. 1. A person who has taken over the copyright from the copyright holder may file a claim for suspension of infringement and compensation for tort damages against the copyright infringers even if he(she) does not register. The same rule is applied for those who were trusted with a copyright but have not completed the trust registration. 2. If the copyright transfer contract is terminated unilaterally or by agreement without the transferee completing the registration, in principle the original copyright holder(= transferer) acquires the copyright immediately. (in rem effect) In this case, the original copyright holder may assert and exercise his(her) copyright against the third party without registration. 3. If the copyright transfer contract is terminated unilaterally after the copyright transferee has completed the registration, the same rule as the above 2. applies. (in rem effect of unilateral termination) However, if the copyright transfer contract is terminated by agreement after the copyright transferee has completed the registration, the original copyright holder must complete the registration to assert his/her copyright against the third party. (in personam effect of the termination agreement) 4. If the copyright trust contract is terminated unilaterally or by agreement without the trustee completing the trust registration, the same rule as the above 2. applies. (in rem effect) But when it comes to the trust property which is first acquired by the trustee himself/herself based on the copyright (ex. trustee’s right to claim for damages against the copyright infringer), the original copyright holder can exercise such claim without restriction only when the opposabilité-conditions for the claim assignment are met. (in personam effect) 5. If the copyright trust contract is terminated unilaterally or by agreement after the copyright trustee has completed the trust registration, in principle constructive trust is established in accordance with Article 101 (4) of the Trust Act, and the original copyright holder must complete registration to assert his(her) copyright against the third party. (in personam effect)