인간의 사상 또는 감정을 표현한 창작물: 저작물의 정의규정Ⅰ- 1957년 제정 저작권법의 재조명(해석론과 법리의 모색) -

This paper originates from a fundamental question raised by the author concerning the provision defining works under the current Copyright Act: what is meant by the phrase “a creative production that expresses human thoughts or emotions”? This study, stemming from that question, seeks to answer it by examining the historical development of the definition of works. The entire study is structured as a trilogy, and this paper, which reexamines the definition of works under the Copyright Act enacted in 1957 (hereinafter the “1957 Copyright Act”), constitutes the first part of that trilogy. Article 2 of the 1957 Copyright Act defines works as: “Under the Act, the expression “works” shall include documents, oral presentations, paintings, sculptures, handicrafts, architectural works, maps, diagrams, models, photographs, musical compositions, musical scores, performances, singing, dance notation, scripts, direction, phonograms, sound recordings, and motion pictures; and, in fact, all objects within the scope of scholarship or art, irrespective of the form or mode of expression.” The relevant provision broadly defines the meaning and types of works in legal texts. When the elements concerning types are excluded, its meaning can be summarized as “all objects within the scope of scholarship or art, irrespective of the form or mode of expression.” Then what is the significance of this provision, more broadly, the essential meaning of the works itself? This is precisely what the paper seeks to elucidate. To do so, it is essential first to trace the origins of the 1957 Copyright Act, specifically those of Article 2. Chapter II examines the origins of the 1957 Copyright Act, specifically whether it followed the former Japanese Copyright Act of 1899 or was independently enacted by Korea in accordance with the Berne Convention. This analysis demonstrates that the Korean Copyright Act was enacted independently, driven by domestic needs and demands, and incorporated new ideas in comparison with the Japanese Copyright Act, thereby reflecting progressive content. Following that conclusion, Chapter Ⅲ examines the origins of Article 2 by comparing Article 1(1) of the former Japanese Copyright Act, which defines works with Article 2(1) of the Berne Convention(1948), which defines literary and artistic works. This comparison clarifies that Article 2 of the Korean Copyright Act was not based on the Japanese provision, but was independently enacted on the basis of the Berne Convention. Chapter Ⅳ structurally analyzes Article 2, conducting a grammatical interpretation of each requirement to ascertain its fundamental meaning. It then examines the application of Article 2 and its doctrine in Supreme Court precedents, including interpretations concerning the theoretical concept of works and the requirements for copyrightability, thereby elucidating the true meaning of ‘works’. By examining these points comprehensively, it can be argued that the essential meaning of Article 2 under the 1957 Copyright Act may be interpreted as “original expressions created through mental effort concerning human thoughts or emotions.” Although the interpretation at that time was not highly sophisticated, it can be regarded as having sought an interpretation that did not depart from the essence of works. Thus, the legacy of the 1957 Copyright Act ultimately laid the groundwork for the 1986 revision of the Copyright Act, which amended the definition of works to “creations within the scope of literature, scholarship, or art.” The meaning of works under the 1986 Copyright Act will be addressed in the second part of this study.