창작성 없는 비저작물의 이용과 일반불법행위책임 - 2007가합16095판결을 중심으로 -

초록

South Korea's court said that even if one used non-copyrightable work one could be blamed for tort liability. This decision is meaningful because the court admits the claim of non-copyrightable work's author in such a case the author can not claim as the infringement of copyright. Therefore, one can be illegal when one violate the right of legal protect able interest. However, if we recognize every use of non-copyrightable work can be illegal, we can reach to the unreasonable conclusion. For example, the admission of tort liability against the use of non-copyrightable work can discourage the aim of Copyright Act and the balance between the protection for copyrightable work and non-copyrightable work. Copyright Act denies the protection after the duration of protection under Copyright Act but tort liability can be applied regardless of duration of protection. Given these points, the requisite of tort liability against the use of non-copyrightable work should be offered on a limited basis and the limited requirements. In particular, the requirement as a "legally protect able infringement on the property interests on business activities" means the property damage as a violation and does not recognize mental damage. Relevant precedents for the Publicity rights also agree with this conclusion. To be more, as the Publicity case, if one compensates the property damage for claimers, then we should recognize that the mental damage was restored with the compensation of property damage.

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