공정이용 법리(fair use)의 국내법 편입에 대한 실증적 연구

Abstract

There has been some discussions to adopt “Fair Use” to copyright law in Japan, and Korea. An amendment of adopting fair use, to copyright law was submitted by lawmakers(Rep. Byun, Jae Il) in Korea. Such quick move could be affected by the FTA agreement concluded with the U.S. in 2007. To implement IP related pledges agreed in the Korea-U.S. FTA such as extension of copyright protection term, 50 years to 70 years, Korea must make amendment to their copyright law considerably. Adoption of fair use was promoted in order to respond the trend of making amendment for strengthening copyright law. What is proposed in the bill is the way to establish “fair use” as a general clause. The existing Korean Copyright Law stipulates exceptional clauses from Article 23 to Article 35, Article 101ter to Article 101quinquies. Although the Korean Copyright Law has exceptional clauses, the clauses are stated relatively narrowly so there has been a certain criticism that Korean court is not active in holding up a fair use defense. By the Guideline, the following article will be inserted as a general clause in Article 35bis (Fair Use of Works). Article 35bis (Fair Use of Works) (1) Other than the cases stipulated from Article 23 to Article 35, Article 101ter to Article 101quinquies it shall be permissible to use works in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (2) The following four factors must be considered in determining whether or not a particular use is fair: 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;2. the nature of the copyrighted work;3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work. Looking at the draft article, the first clause is similar to the words in three-step test clause in Berne Convention and the second clause is similar to four factors in determining fair use under the U.S. Copyright Act. I'd suggest that the main theme of the address should include fair use doctrine, legal problems followed by search and law-making trends of each nation, and be particularly focused on law-making examples. Finally, this study attempt to review necessary elements to adopt fair use to copyright law as a general clause, and to analyze the guideline for fair use of works. To balance the strengthened copyright holder's right and the copyright users, the reasonable role of the Korean domestic courts, especially in interpretation of this clause will become crucially important.