‘퍼블리시티권’ 인정에 대한 비판적 소고 (Study on the Approval of the Right of Publicity)

서지정보

· 발행기관 : 안암법학회
· 수록지 정보 : 안암법학 / 48호 / 281 ~ 326페이지
· 저자명 : 김현경

초록

Currently, in Korea whether to admit the "right of publicity" or not has been controversial and there are only the decisions of the lower courts not yet coming out Supreme Court's decision about "right of publicity". In this situation the difference of litigation results on similar matters makes the litigants feel unjustly, therefore lead to the distrust of the trial. On the basis of this critical perspective, this paper analyzed the Judicial precedents and application limits of the current law for the 'right of publicity' to review the need for recognition of the 'right of publicity' as an independent right.
In Korea's legislative framework in order to be admitted Property right, such rights has expressly based on the statute or shall be recognized as the common law by civil law Article first. However until now right of publicity can not be considered as ' permanent and common practice' and does not form a 'legal certainty', so it can not be considered as recognized by the common law rights. Therefore the right of publicity should be codified into law as a new right. But the recognition of new rights will inevitably entail a limitation of other rights. Recognition of the right of publicity is to restrict freedom of expression, freedom of business and so on. therefore the recognition of new property rights should be based on a solid support and strong evidence. However, the right of publicity can be solved by the extension of the object in the right of likeness that has already been established and the new supplementary general clause(Article 2, Paragraph 1, Subparagraph 10) to the Unfair Competition Prevention and Trade Secret Protection Act. Its introduction as a legal right is still controversial in most countries except the United States and the internationally established principles do not exist. It can also be caused only relatively unequal protection of interests of the nationals because of difficulties in exercising enforcement jurisdiction. Therefore, to codify the right of publicity as a new property right is undesirable in terms of its feasibility and effectiveness.

영어초록

Currently, in Korea whether to admit the "right of publicity" or not has been controversial and there are only the decisions of the lower courts not yet coming out Supreme Court's decision about "right of publicity". In this situation the difference of litigation results on similar matters makes the litigants feel unjustly, therefore lead to the distrust of the trial. On the basis of this critical perspective, this paper analyzed the Judicial precedents and application limits of the current law for the 'right of publicity' to review the need for recognition of the 'right of publicity' as an independent right.
In Korea's legislative framework in order to be admitted Property right, such rights has expressly based on the statute or shall be recognized as the common law by civil law Article first. However until now right of publicity can not be considered as ' permanent and common practice' and does not form a 'legal certainty', so it can not be considered as recognized by the common law rights. Therefore the right of publicity should be codified into law as a new right. But the recognition of new rights will inevitably entail a limitation of other rights. Recognition of the right of publicity is to restrict freedom of expression, freedom of business and so on. therefore the recognition of new property rights should be based on a solid support and strong evidence. However, the right of publicity can be solved by the extension of the object in the right of likeness that has already been established and the new supplementary general clause(Article 2, Paragraph 1, Subparagraph 10) to the Unfair Competition Prevention and Trade Secret Protection Act. Its introduction as a legal right is still controversial in most countries except the United States and the internationally established principles do not exist. It can also be caused only relatively unequal protection of interests of the nationals because of difficulties in exercising enforcement jurisdiction. Therefore, to codify the right of publicity as a new property right is undesirable in terms of its feasibility and effectiveness.

참고자료

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