미국엔터테인먼트법 판례에 나타난 저작권법의 일반원칙 -국내이용허락에 의한 해외저작권침해

Abstract

When each country in the world performs it's own copyright law, the principle of territory(within border) has been kept consistently. However, In entertainment industries' illegal copies, multi-national broadcastings and Internet make this principle a place of the refuge of Illegal reproducer. On the characteristics of Entertainment industry, illegal copies are made easier than the creation of the works. And, though world countries try to cooperate to prevent a pirates of works from copying the works illegally through International agreement such as Berne Convention, Every country has its own situations and own view about entertainment industries, But every country can not provide the world owners of copyright with the same rights, which result in illegal reproduction in blind corner of law. A country's law can not be adapted to another country in order to protect its own people's copyrights. However, these principles that each country's law of copyright governs only its own territory and copyright can not be extended extra-territorial, and must not become the refuge for pirates's illegal reproduction. In order to solve this contradiction, each nation in the world should try to enact the common law of the world to protect the copyright owner's right together. America, which is the leader in world entertainment industries, has made many endeavors to attack these piracies. To protect the copyright owner's right from a piracy's attack, it has provided the owner of copyright with many case laws as well as statutes. There are Subafilms case, Peter Star case, Lewis calooe case, Prime Time case, WGN case, David V. Show time case, L.A. NEWS Serv. v. Reuters TV case, The Sheldon case, Update case, Famous Music case … etc. The general characteristics of these cases are, above all, American law's spirits and aspirations which try to correct injustice and realize justice in any way, anyplace. Though they conflict with a written law, the American courts have looked for all the ways to attack the piracies of copyrights. And then when they provide damages to a plaintiff, the basis is not compensations for plaintiffs' losses. but returning of defendants' profits generated in their torts. Finally, on the range of illegal infringement. one important rule is that American courts attack every kind of every stage of succession of piracy on infringing copyright anytime, anyplace, if he. infringed on others' copyright for himself. this rule may be American's will or spirit to protect its copyright owner and to realize justice. America is a leading country in entertainment industries and so it has many leading cases of entertainment law, and has helped the solution of conflicts which happened in the world entertainment industries, But we have difficulty in understanding the calculation of damages. When they measure the compensation for damages, American courts use the constructive trust theory which focuses on returning of a defendants profit. too much and ignores the loss of a plaintiff's profit which a plaintiff would be received, if the defendant didn't infringe on the copyright. Focusing on only returning of a defendants profit tends to make the recovery of a plaintiff's profit difficult and the punitive compensation of damage weaken. And so we can think that this rule is unreasonable.