게임캐릭터와 아바타를 중심으로 한 캐릭터의 법적 보호

Abstract

This study examined legal protection methods of characters centering on the Copyright Act. In particular, a focus was given on characters on online games and virtual reality, legal properties of games and Avatar and formation of games in programs. To pay attention to new positions of characters in Internet networks, the study introduced virtual reality, understanding of the copyright act, and reiterative game formation systems. They will be further explained in the following chapters:

Chapter 1 briefly described the background, purpose and range of the study. In particular, it mentioned the current condition that a new focus is given on usage of characters according to technological progress, game characters which can give advantages to Korean economy and use of characters in virtual reality. Chapter 2 explained general meaning of characters, focusing on types of characters for easy understanding of the main body as their legal meanings are different according to whether characters are real, creative, literary, visual, or original. Although some academic theories and the courts' decision mentioned the concept of characters that they have economic values such as customer absorption force and advertising effect, it is only one of the properties and not a necessary condition for protection of characters. Chapter 3 introduced properties of copyrighted games suggested in academic circles and precedents of Japan and U.S. in examining protection of characters through other acts including the Copyright Act. For Japan, in the 20th century, games and animation industry have been predominant and it has been raised as a new country of character industry. However, most of academic circles do not consider characters as independent works and precedents have different opinions on them, but some precedents like a judgement involving Miss Sajae which affirmed them deserves attention. As the concept of ‘character right’ was introduced, the same right as the Copyright is sometimes recognized. In the U.S., character markets are enormous and characters are recognized as independent works themselves. Precedents affirm copyrights of visual characters, but protection of literary characters is decided according to a few standards of recognition. There are lots of judgement standards, but if they can not be effectively protected in terms of copyrights, they can be protected through publicity right, illegal competition prevention act and dilution prevention. Chapter 4 described online games and characters. Existing discussion on legal protection of characters could not include all the cases involving Avatar or game characters and discussion on online games and copyrights mainly focused on clauses and criminal and civil cases. Therefore, this chapter explained differences between Avatar and game characters and existing characters and their legal protection. For discussion in terms of the copyrights act, the study analysed the second works based on illegal competition prevention and sale secret protection act and described differences between online game items and Avatar items. In respect to changes in using online games, previous discussion in terms of the copyrights act hardly dealt with the relations with game users, but game contents have been frequently created and new works within games are formed. Originally, to look at the rights involving creating online game items, users' copyrights which were established within programs are overlapped with program providers because users' copyrights are parasitic on programs' copyrights. Then the study discussed legal protection of Avatar and explained legal understanding of virtual reality using the second life as an example and legal meaning of reality realized in virtual reality. Chapter 5 compared and analysed national theories on copyrights act of characters and described summaries of precedents. Then precedents based on negative and affirmative judgements were compared and the flow of national courts and the cases were definitively examined. By considering precedents on the cases of live recording of baseball games with distinctive changes in judgements on game characters, the study examined the judgement that “copyrights of characters shall be decided in consideration of creative personality in visual representation, in which individuality of creators shall be expressed.” This study suggested an affirmative theory that virtual characters should be considered as independent works based on character protection which has been activated in Korea according to technological development which enables cloud contents consumption along with acceleration of multi&open platforms age, because others acts can not effectively cover both the purpose of the copyrights act in terms of induction theory and labor theory, and merchandised characters or character protection in Internet networks. Chapter 6 explained protection of characters based on other intellectual property rights. Each protection condition was examined based on the commercialization rights, the design protection act and illegal competition prevention act and its advantages and disadvantages based on the acts and rights were explained. Chapter 7 emphasized the points of affirmative argument which recognizes characters as independent works and themes of the study after carefully examining problems in their protection through other acts.