공동저작물에 관한 연구 - 대법원 2014. 12. 11. 선고 2012도16066 판결(친정엄마 사건)의 평석을 중심으로

In order to distinguish a joint work from a derivative work, the intention to co-create should be treated necessary in case of a joint work. It is important to examine whether the intention to co-create means 'the intention to legally become a co-author' or 'the intention to create a single work that cannot be used by separating the contributions of each person.' The judgement to review held that the intention to co-create meant the latter. According to the above judgement, when contributions of each creator can be recognized as authorship but one of the authors regards the other as only his or her assistant, his or her intention to co-create can still be acknowledged. On the other hand, the judgement held that, in case a co-author has exercised copyright without the agreement of all the other co-authors in violation of Article 48 (1) of the Copyright Act, it was not an act of violating author's property rights, but merely an act of violating the method of exercising co-author's property rights. However, the grounds presented by the lower court to support this are all policy matters, and are biased towards broadening the scope of free use without considering specific circumstances at hand. If one of the co-authors exercises the right alone, it should be regarded as an infringement of both civil and criminal rights of the other co-authors’ share. The Article 48 (1) provides that a co-author should not obstruct the formation of an agreement or refuse to consent against good faith. When one co-author exercises his or her rights, the consent of the other co-author must be obtained in advance, but if the latter objects and such objection is contrary to good faith, it can be interpreted that the former does not bear the responsibility for copyright infringement even if he did not obtain prior consent.