저작권 및 저작물의 가치평가에 대한 연구

초록

Article 2 subparagraph 16 of the Framework Act on the Promotion of Cultural Industries (hereinafter “Cultural Industries Act”) prescribes that “[t]he term” value assessment “means indicating the economic value, which arises, or is likely to arise, from the commercialization of cultural products or cultural technologies (referring to techniques or technologies used for manufacturing cultural products), in price, grade or scores.” Also, Article 16 bis, paragraph 1 of Cultural Industries Act states that “[t]he Minister of Culture, Sports and Tourism may designate value rating institutions (hereinafter referred to as “rating institutions”) to rate the value of cultural products and cultural technology in a professional and efficient manner.” These provisions are the legal basis for the economic valuation of cultural content. However, they do not focus on the valuation of copyright. In addit ion, Article 6 (1) of t he Act on Special Measures for t he Promot ion of Vent ure Businesses, which was revised on January 3, 2023 and whose title was subsequently modified as “Special Act for the Promotion of Venture Businesses,” prescribes that “Subjects, in respect of which contributions in kind may be made to venture businesses, shall include patent rights, utility model rights, design rights, copyrights, or technologies equivalent thereto and the rights to the use thereof (hereinafter referred to as “intellectual property rights, etc.”).” It is the first provision which includes copyright as the subject of contributions in kind made to venture businesses. In these regards, the copyright valuation methods need to be explored. Furthermore, Article 35 quinquies, paragraph 2, subparagraph 4 of the Korean Copyright Act prescribes that the fourth factor of fair use defense includes “value of copyrighted mat erials.” T aking int o account t he f act t hat t he s ubject o f license u nder t he K orean Copyright Act is copyrighted material rather than copyright itself, this paper needs to discuss valuation of copyrighted materials in addition to valuation of copyright. In sum, this Article covers valuation of copyright, and valuation of copyrighted materials under Article 35 quinquies, paragraph 2, subparagraph 4 of the Korean Copyright Act as well. Copyright valuation is used for (i) transfer of copyright, (ii) licensing of copyright, (iii) financing through copyright, (iv) management to maximize enterprise value, (v) valuation of assets in mergers and acquisitions, (vi) dispute resolution, and (vii) taxation. Copyright valuation methods include quantitative methods - (i) the cost approach, (ii) the income approach, and (iii) the market approach - and qualitative methods - (i) the scoring approach (indicator method), (ii) the probabilistic approach, (iii) the rating approach, and (iv) the criteria approach. In particular, the market approach may be useful for the calculation of the ordinary royalty under the Copyright Act in relation to the assessement of damages, while the income approach may be more useful for the calculation of the reasonable royalty under industrial property laws such as patent, trademark, design protection, and utility model laws. Therefore, if the ordinary royalty system under the Copyright Act is revised to a reasonable royalty one, it is expected that the income approach can be applied in earnest, as it can be interpreted under a normative interpretation approach rather than a strict margin theory. However, if there is an active market, the market approach will be considered first, but if not, the income approach will be utilized. In addition, while the “potential market for the copyrighted work” under Article 35 quinquies, paragraph 2, subparagraph 4 of the Copyright Act focuses on economic value, the “potential value of the copyrighted work” can also include values other than economic value.

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