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미리암 바르톨로치 중앙대학교 법학연구원 문화.미디어.엔터테인먼트법연구소 2022 문화.미디어.엔터테인먼트 법 Vol.16 No.2
This paper analyses Confucianism’s role in shaping or hindering different aspects of the law and human rights protection in South Korea. In fact, from a western perspective, it is still challenging to understand the phenomena ranging from constitutional culture and democratic transition to the development of a set of laws for the protection of the rights of creators and owners of inventions, writing, music and more, without exclusively connecting them with the adaption of western institution and practices. Constitutional developments, policies, and the journey towards protecting intellectual property rights are way more complex and internalised than the mere adoption process: geographical, historical, and philosophical contingencies have made these processes differ widely from the western experience. This paper will deal with the correlation between Confucian principles and the late development of intellectual property rights in South Korea, considering what the absence of legal protection has meant for the country. The lack of protection of creative works in East Asia undoubtedly arose from Confucianism, which represented a significant barrier to intellectual property reforms in China and South Korea. Following Confucian principles, copying a scholar’s book was not offensive. On the contrary, it reflected a passion for learning and raising one’s social status. A problem that can be considered consequent to this issue, which was still very relevant at the beginning of the twenty-first century, is widespread offline and online piracy. On this matter, the case of Soribada will be analysed. Soribada is a well-known Korean P2P platform. Courts at different levels held Soribada accountable for violating the copyright law, and they addressed the problem of service providers’ responsibility. This case is fundamental because it helped define digital copyright law in Korea after multiple lawsuits and software revisions to comply with the law. Considering that the issue of intellectual property rights protection in Korea emerged simultaneously with the need for democratisation and a series of protests in the country, this work will also focus on the first Patent case in Korea (정인호의 말총모자), which was registered over a century ago. It is an interesting case of how intellectual property indirectly helped the country. In fact, this case is fundamental because it significantly benefited the country’s independence movement at that time.
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미리암 바르톨로치 중앙대학교 법학연구원 문화.미디어.엔터테인먼트법연구소 2023 문화.미디어.엔터테인먼트 법 Vol.17 No.2
Copyright protection provides two distinct sorts of rights to the right holder. The first category pertains to economic rights, which ensure individuals’ authority over their own intellectual creations and compensation for their utilisation through selling and licensing. The second category pertains to moral rights, which encompass rights associated with the creator’s personal identity and the preservation of their dignity and honour as an author. These rights typically include, at minimum, the right of attribution, which grants authors the entitlement to be recognised as the creators of their work, and the right of integrity, which grants authors the prerogative to prevent any modifications or alterations to their work that may be detrimental to their reputation. The extent to which moral rights are protected and given might vary based on the legal traditions that belong to each country. Establishing this group of rights is essential for authors to guarantee the proper acknowledgement of their work. Nevertheless, moral rights have sparked significant global debate, and attempts to achieve harmonisation have shown to be inconsistent and ineffective. The purpose of this work is to analyse the correlation between copyright and human rights, considering the overarching structure of moral rights protection in countries stemming from two distinct traditions: Continental-European (civil law) and Anglo-American (common law), mainly going through the examples of France, Germany, and the United States, with some reference to other countries for comparison. In general terms, Continental European tradition places significant emphasis on safeguarding the author’s personality rights, drawing primarily and historically from philosophical concepts rooted in the French tradition. Conversely, common law countries prioritise economic rights and the commercial interests of authors, allocating comparatively less importance to moral rights. Moreover, this paper will also delve into the examination of international and supranational instruments. It will additionally centre its attention on The Asphalt Jungle Case, which was brought before the Cour de Cassation of France. This case represents an endeavour to enhance the safeguarding of moral rights, particularly in jurisdictions where the legal framework provides only minimal protection for such rights. Finally, a discussion on moral rights and digital technology will be held to determine whether it will be possible to reach a harmonisation agreement soon or if it will be too difficult and moral rights will be viewed as outdated.
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