저작물의 새로운 이용 방법과 저작권의 귀속

Abstract

In the field of copyright, the development of new technologies leads to new ways of using copyrighted works, and the question arises as to whom the profits from such uses should be attributed. NFTs, a new way of using copyrighted works that has emerged due to the development of blockchain technology, also raise the issue of to whom the profits should be attributed. In most cases, this issue arises between the original author and the subsequent rights holder, and can be resolved in two ways: the technical characteristics of the method of use and the direction of law and policy. First of all, when it comes to the technical aspects of attributing benefits, there are two points to consider. One is to look at whose rights are more necessary in the life-cycle of an NFT, such as the creation of an NFT. Unless separate rights are created for NFTs, it will be easier to obtain rights to NFTs for those who have more of the necessary rights or similar types of rights in relation to NFTs. The other is to look at whose interests the NFT technology itself, as a new way of using it, serves more and whose interests it harms less. If NFTs are a completely unexpected technology, it seems reasonable to recognize the original creator of the work to retain the rights, and if it can cannibalize or displace the business of the latter, it seems reasonable to grant rights to the latter. Next, from a legal and policy perspective, the attribution of a new method of use may be determined by the status and position of the parties, the process at the contractual stage, the economic impact, and social justice such as the proper distribution of benefits. However, in order to prevent disputes and increase predictability, it is necessary to establish the principle of attribution of rights to new methods of use and introduce a simple method of resolving the issue according to the purpose. The U.S. and European systems can be used as a guide, and if the principle of freedom of contract is maintained and original authors, who are generally at a disadvantage, are to be protected, the introduction of a right of termination, a right of rescission or a right of revocation that enables the assignment of new methods of use in advance and protects original authors seems appropriate.