퍼블릭도메인의 확보를 위한 복제권의 해석 - 서울고법 2010. 10. 13 선고, 2010나35260 판결과 관련하여 -

Abstract

The purpose of this article is to propose a market-based test for the infringement of the reproduction right, which can preserve public domain as well as the inventive to create. The nature of copyright is a statutory monopoly, which purports to nurture public domain by providing authors with incentives to create. This article argues that the original nature of copyright as a tool for fertilize public domain should be restored. For this argument, this article first introduces a recent Korean copyright case, in which the plaintiff uploaded a clip showing his 5 year-old-girl singing and dancing a popular song. Next, this article proves that, at first, the copyright was held infringed only when the defendant’s use displaces the copyright holder’s market demand. But, this article also shows that the copyright holders’ legislative lobby had shifted the nature of copyright from statutory monopoly to proprietary right. This article finally argues that the court should play a major role in balancing between the protection and use of copyright to secure public domain to achieve the purpose of copyright.