SW라이선스를 위반한 저작권 침해시의 공정사용원칙 적용가능성 -SW스트리밍 서비스 사례를 중심으로-

Abstract

Recently, major countries in the world are making new trade order through Regional Trade Agreement(RTA) to get over limitation of Global trade environment, and Korea also had concluded RTA with several countries in the world. Among these, Korea-US FTA is leading changes throughout intellectual property rights, and National Assembly of Korea has brought in the statute about fair use of copyrighted works according to Korea-US FTA Article 18.4, clause 1, footnote 11. Therefore, as the possibility of adopting the fair use doctrine to Korea's Copyright law is growing, it became necessary to establish interpretation principle about fair use. The most important references about the interpretation principle of fair use doctrine are precedents of US. Courts of US are looking through whether the using is transformative use or not, this interpretation principle has different view from each consideration of 4-requirement, therefore it became urgent to develop theory which can determine whether the use is transformative use or not. Especially, in relation to the statute of fair use, it has been controversy in that courts of US accept a contract preferentially in Bowers Case, it should be interpreted as mandatory regulation considering copyright law of Korea. This interpretation principles should be applied if excepting fair use by contract as well. At the moment to interpret under this principle, it should be determined if streaming services infringe copyright or not by focusing whether there is transformative use. Therefore, it's more likely to reinterpret the precedents which held that streaming services infringed right of transmission.