저작권 침해에 있어서의 의거관계와 실질적 유사성에 관한 검토

Abstract

As to copyright infringement, Korean copyright law does not provide any standards. The U.S. courts developed the "substantial similarity and “access” tests and the Korea courts accept and apply the tests verbatim. The access is inevitably decided by circumstantial evidences and such circumstantial evidences are the possibility of the access and substantial similarity. Substantial similarity is further divided into ‘fragmented literal similarity and comprehensive non-literal similarity, especially in literary works. Trial courts in Korea also accept these concepts but there is no consistent judgement to construct these concepts. The U.S. courts have interpreted substantial similarity from various perspectives and provided wide theories for the understanding of substantial similarity. Recently, the U.S. court explicitly declared the abolition of the mverse ratio rule* in applying the access and the substantial similarity but this rule still needs to be maintained as it plays an important function for the litigation of the copyright infringement. With the inverse ratio rule, the judgment on the access and substantial similarity will have practical meaning beyond an efficient litigation tool.