韓國法上公開權成文化之初探

A Preliminary Study on the Codification of Right of Publicity in Korean Law

受惠於娛樂產業的蓬勃發展與社群媒體的興盛，知名人士的肖像、姓名等具有識別性的人格特徵，因其多樣化的商業行為而孕育出財產價值，一般將此財產價值的保護，稱為公開權（right ofpublicity）。公開權此一概念係源自於美國法，但因臺灣與韓國民法主要皆繼受自德國民法，並以人格權作為保護人格特徵的主要規範，則因人格權係以保護人類精神利益為內容的權利，對於聚焦在人格特徵所具備財產價值的公開權，究應如何定性此一權利並予以妥適保護，不論在韓國或是臺灣，皆面臨諸多挑戰。
就此，本文擬以韓國近來倍受矚目的BTS案作為楔子，說明韓國目前實務上如何以不正競爭防止法保護知名人士的人格特徵，嗣後並介紹公開權所涉學說與實務見解的遞嬗，以及近年政府嘗試導入「人格標識營利權」的民法修正草案內容，以呈現韓國產官學界對於公開權的思辨歷程。透過呈現不同見解間的衝突與折衝並分析其主要爭議，本文嘗試提供讀者於臺灣法脈絡下思索相關議題時的思考方向。

Benefiting from the robust growth of the entertainment industry and the widespread influence of social media, the identifiable personal identities of celebrities—such as their names and likenesses—have gestated substantial property value through a variety of commercial activities. The legal protection of this property value is commonly known as right of publicity. Right of publicity originated in U.S. law, where it is recognized as a distinct property right. In contrast, both Taiwanese and Korean civil laws are primarily derived from German civil law traditions, which rely on personality rights as the principal legal framework for protecting personal identities. Personality rights are fundamentally intended to protect personal interests rather than commercial interests. As a result, both Korea and Taiwan are facing significant challenges in defining and effectively protecting right of publicity—focused on the property value of personal identities—within their respective legal systems.
This paper takes the recent, well-known BTS case in Korea as a point of departure to demonstrate the practical application of the Unfair Competition Prevention Act in protecting the personal identities of celebrities. It then introduces the evolution of law theories and practices related to right of publicity, as well as recent government attempts to introduce this new right—referred to as the‘commercial right of personality mark,’which is essentially the same as right of publicity—through proposed amendments to the Civil Act, thereby presenting the process of deliberation on right of publicity among Korea’s legal, governmental, and academic sectors. By outlining the conflicts and compromises between differing viewpoints and analyzing the principal controversies, this paper aims to offer readers guidance for considering related issues within the context of Taiwanese law.