법경제학적 관점에서 본 지적재산권 독점배타권의 정당성 －공정사용의 원칙을 중심으로－

Abstract

Intellectual property law system is based on the concept of ‘infinite property’ as “intellectual property is infinite just like human being’s desire”. So, intellectual property law system should be different from the Law of Realty system. To explain the special feature of Intellectual property, the theory of the dynamic efficiency based on Law and Economics have been developed in so much period. The theory of the dynamic efficiency is explaining the objects of Intellectual property law as the view of policy making and searching for public interests by the maintenance of steady innovation. As on the basis of the theory of the dynamic efficiency, policy of compensation, policy of access right and the other policies have been developed for dynamic efficiency. If the benefits of right owner are not bigger than the benefits of public or the advantages of right owner are less than the loss of contractual costs of users, then the right should not be treated as the rightful thing. So we should compare the benefits of right owner and the benefits of public and the advantages right owner’s exclusive right and the loss of contractual costs of users. Also, we should resume one’s infringement only when the property damage occur but if there is no any property damage we should treat those kind of behaviors are innocent. When some property damage occurs, then the intellectual property right owner should prove the damage of Intellectual property on those behaviors. After then they should demand the protests based on the fair use doctrine.