CHAPTER 1 총 설 제1절 서 설 ··································································································· 1 Ⅰ. 저작권법의 기본 구조 ··············································································· 1 Ⅱ. 지적소유권과 지적재산법 ········································································· 3 1. 지적소유권의 의의 / 3 2. 지적소유권제도의 발전 / 5 3. 지적재산법 / 6 제2절 저작권법의 연혁 ··················································································· 7 Ⅰ. 저작권제도의 연혁 ···················································································· 7 1. 인쇄술이 가져온 혁명 / 7 2. 인쇄특권제도와 검열 / 8 3. 최초의 저작권법 / 9 4. 지적소유권으로서의 저작권 / 10 Ⅱ. 우리나라의 저작권제도 ··········································································· 12 1. 서 언 / 12 2. 1908년 저작권령 / 12 3. 1957년 저작권법의 제정 / 13 4. 1986년 저작권법의 개정 / 14 5. 1987년 이후의 개정 / 15 CHAPTER 2 저작권법 제1절 저작권제도의 목적과 저작물일반 ······················································· 16 Ⅰ. 저작권제도의 목적 ·················································································· 16 Ⅱ. 저작권제도의 존재이유 ··········································································· 18 1. 자연적 정의의 원칙 / 18 2. 경제적 이유 / 19 3. 문화적 이유 / 19 4. 사회적 이유 / 19 Ⅲ. 저 작 물 ··································································································· 20 1. 의 의 / 20 2. 저작권의 보호범위 / 24 3. 저작물의 분류 / 31 제2절 여러 가지 저작물 ················································································ 34 Ⅰ. 서 언 ···································································································· 34 Ⅱ. 저작물의 예시 ························································································· 35 1. 어문저작물 / 35 2. 음악저작물 / 37 3. 연극저작물 / 38 4. 미술저작물 / 40 5. 건축저작물 / 47 6. 사진저작물 / 48 7. 영상저작물 / 52 8. 도형저작물 / 52 9. 컴퓨터프로그램저작물 / 57 Ⅲ. 특수한 저작물 ························································································· 58 1. 2차적 저작물 / 58 2. 편집저작물 / 63 Ⅳ. 보호받지 못하는 저작물 ·········································································· 68 1. 국민에게 널리 알려져야 할 저작물 / 68 2. 시사보도 / 69 제3절 저작자 ································································································· 70 Ⅰ. 의 의 ···································································································· 70 Ⅱ. 저작자 추정 ····························································································· 73 Ⅲ. 저작자와 저작권자 ·················································································· 74 1. 저작권자 / 74 2. 저작권자 추정 / 75 3. 추정의 효과 / 75 Ⅳ. 특수한 경우 ····························································································· 75 1. 업무상 저작물 / 75 2. 공동저작물 / 78 3. 대 작(代作) / 82 4. 감수, 교열 / 82 5. 월북(재북)작가의 저작물 / 82 6. 외국인의 저작물 / 83 제4절 저작권일반 및 등록제도 ······································································ 83 Ⅰ. 저 작 권 ··································································································· 83 1. 의 의 / 83 2. 저작권의 발생: 무방식주의 / 84 3. 저작권의 법적 성격 / 84 Ⅱ. 저작권과 다른 권리와의 관계 ································································· 88 1. 저작권과 디자인권 / 88 2. 저작권과 상표권 / 89 3. 저작권과 소유권 / 90 Ⅲ. 저작권제도와 등록 ·················································································· 91 1. 서 언 / 91 2. 우리 법이 인정하는 등록 및 등록기관 / 92 3. 저작권법상의 등록 / 92 4. 저작재산권의 변동 등에 관한 등록 / 94 5. 등록의 절차 / 96 6. 권리자 등의 인증 / 97 제5절 저작인격권(moral right, droit moral) ··················································· 99 Ⅰ. 의 의 ···································································································· 99 Ⅱ. 공 표 권 ··································································································· 99 1. 의의 및 내용 / 99 2. 공표 동의의 추정 및 의제 / 101 3. 다른 법과의 관계 / 102 Ⅲ. 성명표시권 ···························································································· 102 Ⅳ. 동일성 유지권 ······················································································· 106 Ⅴ. 공동저작물의 저작인격권 ····································································· 119 Ⅵ. 저작자 사후의 인격적 이익의 보호 ······················································· 120 제6절 저작재산권 ························································································ 121 Ⅰ. 서 언 ·································································································· 121 Ⅱ. 저작재산권의 종류 ················································································ 122 1. 복 제 권 / 122 2. 공 연 권 / 124 3. 공중송신권 / 124 4. 전 시 권 / 125 5. 배 포 권 / 127 6. 대 여 권 / 128 7. 2차적 저작물 작성권 / 129 8. 그 밖의 권리들 / 130 제7절 저작재산권의 제한 ············································································ 136 Ⅰ. 서 설 ·································································································· 136 Ⅱ. 자유사용 ································································································ 136 1. 서 언 / 136 2. 우리법상 저작재산권의 제한 / 137 3. 저작권 제한과 출처명시 / 186 4. 프로그램저작권에 적용제외 / 188 5. 저작재산권의 제한과 저작인격권 / 188 Ⅲ. 저작물 이용의 법정허락 ········································································ 188 1. 개 설 / 188 2. 우리법상 법정허락제도 / 189 Ⅳ. 저작권의 시적 한계 ··············································································· 191 1. 서 설 / 191 2. 보호기간의 원칙 / 192 3. 보호기간의 특례 / 192 4. 기타의 소멸 원인 / 193 제8절 저작인접권 ························································································ 194 Ⅰ. 서 언 ·································································································· 194 Ⅱ. 저작인접권의 주체와 객체 ···································································· 195 1. 주 체 / 195 2. 객 체 / 195 Ⅲ. 저작인접권의 내용 ················································································ 197 1. 실연자의 권리 / 197 2. 음반제작자의 권리 / 202 3. 방송사업자의 권리 / 204 Ⅳ. 보호기간 ································································································ 205 1. 권리 발생 / 20 2. 보호기간 / 205 3. 상호주의의 적용 / 206 Ⅴ. 권리의 제한·양도·행사·소멸 ·························································· 206 Ⅵ. 저작권과의 관계 ···················································································· 207 제9절 제작자 ······························································································· 207 Ⅰ. 서 설 ·································································································· 207 Ⅱ. 데이터베이스제작자 ·············································································· 207 1. 서 설 / 207 2. 보호받는 데이터베이스 / 209 3. 데이터베이스제작자의 권리 / 209 4. 데이터베이스제작자의 권리제한 / 210 5. 보호기간 / 210 6. 데이터베이스제작자 보호와 콘텐츠제작자의 보호 / 211 Ⅲ. 영상제작자 ···························································································· 211 제10절 배타적 발행권 및 출판권 ································································ 216 Ⅰ. 배타적 발행권 ······················································································· 216 1. 서 설 / 216 2. 배타적 발행권의 설정과 등록 / 217 3. 배타적 발행권의 내용 / 219 4. 배타적 발행권자의 의무 / 220 5. 저작자 등의 권리 / 221 6. 배타적 발행권 소멸 후의 복제물의 배포 / 222 Ⅱ. 출판과 출판권: 출판에 관한 특례 ························································· 222 1. 출판의 의의 / 222 2. 출판권의 설정 / 224 3. 출판권의 내용 / 225 제11절 저작권의 양도 등과 신탁관리·대리중개업 ··································· 230 Ⅰ. 서 설 ···································································································· 230 Ⅱ. 저작재산권의 양도 등 ··········································································· 230 1. 저작재산권의 양도 / 230 2. 저작물의 이용허락 / 233 3. 저작권의 질권설정 / 236 4. 공동저작물의 저작재산권의 행사 / 236 Ⅲ. 저작권 신탁관리·대리중개업 ······························································ 237 1. 개 설 / 237 2. 위탁관리업의 허가 등 / 238 3. 신탁관리업자의 권리와 의무 / 239 4. 위탁관리업자에 대한 감독 등 / 240 제12절 저작권 침해에 대한 구제 ································································ 242 Ⅰ. 권리침해 ································································································ 242 1. 권리침해의 의의 / 242 2. 저작권 침해의 형태 / 242 Ⅱ. 민사적 구제제도 ···················································································· 283 1. 서 언 / 283 2. 저작권 침해행위 금지청구권 / 284 3. 손해배상청구권 / 291 4. 공동저작물의 권리침해 / 303 5. 저작물성이 부정된 경우와 불법행위책임 / 303 Ⅲ. 형사적 제재 ··························································································· 305 1. 서 언 / 305 2. 권리의 침해죄 등 / 305 3. 부정발행 등의 죄(법 137조) / 306 4. 출처명시 위반의 죄 등(법 138조) / 307 5. 몰수(법 139조) / 307 6. 친고죄(법 140조) / 307 7. 양벌규정(법 141조) / 310 Ⅳ. 행정적 규제 ··························································································· 310 1. 서 설 / 310 2. 이른바 오프라인상에서의 불법복제물의 단속 등 / 311 3. 이른바 온라인상에서의 불법복제물의 단속 등 / 312 Ⅴ. 침해에 관여된 자의 책임 ······································································· 315 1. 공동불법행위의 성립여부 / 315 2. 온라인서비스제공자의 책임제한 / 319 Ⅵ. 대체적 분쟁해결 제도: 조정 및 알선 ····················································· 329 1. 서 언 / 329 2. 조 정 / 329 3. 알 선 / 334 제13절 컴퓨터프로그램 보호 ······································································ 335 Ⅰ. 보호의 대상 ··························································································· 335 1. 컴퓨터 프로그램 / 335 2. 프로그램과 소프트웨어(software) / 337 3. 적용제외 / 337 Ⅱ. 프로그램 저작물 저작자 및 저작권 ······················································· 340 1. 저 작 자 / 340 2. 프로그램 저작재산권의 제한 / 341 3. 프로그램 저작인격권 및 그 제한 / 343 4. 침해와 침해에 대한 구제 / 343 5. 프로그램 임치제도 / 347 Ⅲ. 게임용 프로그램의 특수성 ···································································· 348 CHAPTER 3 국제저작권법 제1절 종래의 조약들 ··················································································· 349 Ⅰ. 저작권의 국제적 보호의 필요성과 조약의 성립 ···································· 349 Ⅱ. 문학적 및 예술적 저작물의 보호를 위한 베른협약 ······························· 350 1. 베른협약의 특색 / 350 2. 베른협약의 내용 / 351 3. 문 제 점 / 355 Ⅲ. 세계저작권협약(Universal Copyright Convention: UCC) ·························· 355 1. UCC의 특색 / 355 2. UCC의 기본원칙 / 356 3. 개발도상국에 대한 특혜 / 357 Ⅳ. 로마협약(International Convention for the Protection of Performers, Producers of Phonogram and Broadcasting Organization) ························ 357 1. 연 혁 / 357 2. 인접권협약의 특징 / 358 Ⅴ. 음반협약(The Phonogram Convention, 1971) ·········································· 359 1. 성립경위 / 359 2. 본 협약의 특징 / 360 Ⅵ. 기타 협약 ······························································································· 360 1. 브뤼셀 위성협약 / 360 2. 저작권 사용료의 이중과세 방지를 위한 다국간협약 / 361 제2절 WTO/TRIPs ····················································································· 361 Ⅰ. 서 설 ···································································································· 361 Ⅱ. 기본원칙 ································································································ 362 Ⅲ. 실체규정 ································································································ 362 1. 개 설 / 362 2. 저작권 및 저작인접권 분야에 관한 규정의 내용 / 363 Ⅳ. 집행규정 ································································································ 364 Ⅴ. 분쟁처리규정 ························································································ 365 제3절 세계지적소유권기구 저작권조약 및 실연·음반조약 ······················· 366 Ⅰ. 성립의 경위 ··························································································· 366 Ⅱ. 저작권조약의 내용 ················································································ 366 1. 베른협약과의 관계 / 366 2. 저작권의 보호범위 / 367 3. 저작물 종류의 확대와 권리의 확장 / 367 4. 저작권 제한규정의 엄격화 / 368 5. 기술조치 및 권리관리정보에 관한 보호의무 / 369 Ⅲ. 실연·음반조약의 내용 ········································································· 369 1. 다른 조약과의 관계 / 369 2. 새로운 개념정의 / 369 3. 권리의 확장·신설 / 370 4. 기술조치에 관한 보호의무 및 권리관리정보에 관한 의무 / 371 ■ [부록] 저작권법 ···························································································· 373 ■ 찾아보기 ······································································································ 419