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초록· 키워드
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It is extremely unreasonable that a new bill revising the Korean Copyright
Act is trying to recognize the right of publicity as part of copyright law. It’s
because of the following reasons: In US where the right of publicity first
emerged and still has been strongly protected, the mainstream of academic
discussions and actual legislations have been based on not copyright law but
unfair competition law. The traditional justification argument for copyright
such as incentive theory is not well compatible with the right of publicity
which is just a byproduct, not the direct result from such incentive. Even
though the Korean Copyright Act already protects the subjects matter (an
actor’s stage performance as well as a database) which lacks originality, it is
quite a different issue whether the Act could also subsume the right of
publicity. The individual provisions of rather the Korean Unfair Competition
Act than the Korean Copyright Act is more related with the right of
publicity. Some decisions by Korean courts implicitly took a position favoring
that the right of publicity was belonging to the unfair competition law area.
Therefore, the future legislation for the right of publicity should be done
under the principles of unfair competition law.
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