음악저작물에 관한 저작권침해의 판단기준

Abstract

Today music is like an official language, which can be shared by the whole global community. In the digital era, music is a form of language that spreads all over the earth at the speed of light, and has a powerful effect on the economy and popular culture of a country. In particular, works of music which are protected by copyright, have become a profound source of economic income. Accordingly, plagiarism is a problem which infringes upon morality. Such plagiarism causes legal disputes between involved parties. Therefore, this study aims to present clearly the criteria for copyright infringement as follows, in order to mitigate and prevent reckless legal disputes of copyrighted works of music in the future by analyzing specific cases. Firstly, criteria for copyright infringement should be established based on moral principles of sharing, for fair use of music and cultural development. Secondly, the plaintiff’s creativity should be recognized prior to making a comparative analysis between of the plaintiff’s music and that of the defendant. Thirdly, there should be a basis of facts or principles when the problematic parts of music are compared and analyzed. Fourthly, the practical tool to determine plagiarism of copyrighted music, is whether or not there is a substantive similarity. Therefore, melody and its components (rhythm and harmony) should be compared and analyzed with overall flow and tone row of each contrasting area. Moreover, musical composition and proportion of melody combination should be synthetically examined. Fifthly, it is reasonable to make a final determination of copyright infringement on the basis of the moral principles of sharing, by applying a division between creative ideas and their musical expression. In addition, we will propose a measure to legislate and utilize the collaboration test process in which professional musicians and audiences jointly determine plagiarism in advance.