저작권; 이전; 저작재산권의 양도; 2차적저작물; 양도추정; Copyright; Transfer; Assignment of Author's Property Rights; Derivative Work; Presumption of Assignment
産業財産權, 2012, 37, P.215-250, 36P.
There is no question that the creator of a derivative work that is not an infringement of the underlying work is the owner of rights of copyright in that derivative work, but does not acquire any rights to the underlying work. The creator of a derivative work must create the derivative work with the authority of the copyright proprietor since the copyright proprietor of the underlying work has the exclusive right to make derivative works. According to Section 45(2) of the Korean Copyright Act(KCA), the right of the production and exploitation of a derivative work as prescribed under Section 22 shall be presumed not to be included in the transfer, unless otherwise stipulated, in case author's property rights are transferred by assignment in whole. Software copyright transfer means that the contributor assigns to the software copyright ownership on her contributions. Recently, there has been critic on the presumption of assignment the right of the production and exploitation of a derivative software work. This study examine the legal problems of Section 45(2) of the KCA.