저작권 사용료 사전승인의 위헌성에 대한 검토

According to the Copyright Act, the copyright royalty shall be approved by the Minister of Culture, Sports and Tourism. This is to prevent the harm caused by the monopoly status of the Copyright collective management organizations and to rationalize the interests. However, the determination and collection of copyright royalties are a key element in the exercise of author rights. Therefore, direct regulation on this subject is accompanied by restriction of fundamental rights such as proprietary rights of the copyright owner and freedom of business. Therefore, this study examines the justification factor of the royalty control by the state and examined whether the pre-approval of the copyright royalty conforms to the proportional principle in the Constitution. First, in order for the royalty control by the state to be justified, the target should be public goods or social services. The transaction price of services or products between individuals is usually determined by demand and supply in the market. However, the intervention of the state is justified when the services such as electricity, gas, and telecommunication have high public value, which in itself causes a great burden on the people and has a significant influence on the right to live as a human being. Copyright is private right, and the use of copyrighted works is not a public service. Therefore, it is not reasonable that the decision on copyright royalties is made in the same way as the fee control for social services with this public nature. Next, the approval of copyright royalties should be in proportion to the principle of proportionality because it restricts property rights of the copyright owner. However, despite the existence of other means of minimizing infringement of rights of copyright holders, such as measures to revitalize multiple collective management organizations, to adjust the fee after the post and so on, the approval of the copyright royalty with a high degree of infringement of fundamental rights is not in line with the principle of ‘minimal infringement’ among proportional principles in the constitution. In addition, although there is a sufficient way to correct the harm caused by the monopoly of the collective management organization in the aftermath, and the harm is not so important or urgent, taking the high-intensity restriction system of pre-approval of copyright royalties does not fit the balance of legal interests. Therefore, prior approval of copyright royalties is likely to violate the proportional principle, so it needs to be abolished and improved.