권리침해물의 광고금지에 관한 저작자의 권리 = Author’s Right to Prohibit Advertisement of Infringing Product

다국어 초록 (Multilingual Abstract)

The Korean Copyright Act grants distribution right to the author. Distribution herein means transferring or renting the original or the copies of all work to the public. However, the rights of the patentee granted under the Patent Act include not only the act of transferring or renting the article, but also the act of offering for transferring or renting the article. It is widely interpreted that offer herein is not an offer under the Contract Law, but includes recommendations via product catalogs. The right granted to the trademark owner under the Trademark Law includes not only the act of affixing the trademark on a product and transferring it, but also the act of affixing the trademark in advertisements about the product. In other words, the act of advertising the product subject to the right is included in the scope of the patent right or trademark right.
On the other hand, some domestic precedents even prohibit advertising in cases of prohibition of copyright infringement or preliminary injunction against infringement, even though advertising is not included in the rights of copyright owners under the Copyright Act. It is difficult to avoid criticism just because there is no explicit basis in the law.
Japanese Copyright Act has explicit provisions that treat proposals for distribution as an act of infringing copyright. In the United States, there are precedents and scholarly views that consider the act of making the copy available to the public even before the actual transfer of the copy as being included in the distribution right. German precedents and theories have broadly interpreted the concept of the distribution right to include an offer or advertisement for the sale of an original or copies. The European Union's Court of Justice also interprets the distribution right to include the act of advertising pirated products.
Compared to patentees or trademark owners, it is unfair to deny the right to prohibit the advertisement of pirated products only to the copyright owner. The current Copyright Act has provisions that consider the act of possessing pirated product for the purpose of distributing it as an act of copyright infringement. This regulation also aims to prevent pirated products from entering the market in advance. In order to protect copyright in an effective manner, it is necessary to block the attempts of pirated products to enter the market by prohibiting the advertisements for the sale of them before they are actually transacted.