저작권법 제28조 인용조항 해석론의 변화 및 그에 대한 비평

Abstract

In the specific feature of the quotation provision, Art. 28 in the Korean Copyright Act before and after the provision was changed by the amendment in 1986, in the discussion made by scholars and courts cases about the provision, it is hard to deny the really heavy affluence from Japan. Even the detailed expressions in the provision or the related rulings are same with those of Japan in a significant portion. But on the other hand, under the stronger US influence on the field of copyright law than on the other areas of intellectual property laws in South Korea, the attitude trying to interpret the quotation provision as a US-style comprehensive fair use provision as much as possible has been continuously maintained. In such a situation, the continually changing view of the Korean Supreme Court precedents about the quotation provision until the comprehensive fair use provision is introduced in 2011 could be summarized as follows: ① the ‘Obscene Photos of the Flash Magazine’ case in 1990, ② the ‘College Entrance Examination Questionnaire Book’ case in 1997, ③ the Novel The Roses of Sharon have blossomed case in 1998, and ④ the ‘Thumbnail Image Service by The Search Engine’ case in 2006. Number ① ruling is deadly following the theory of the master-servant relationship set by the Japanese Supreme Court. Num. ② ruling, has great significance because, earlier than Japanese rulings, it presented the same standpoint as that later becomes influential in Japan even though the num. ② ruling took a part of the Tokyo High Court’s ruling as it is. Num. ③ ruling is the first case supporting the exactly same position as in the below Lyprinol case which is the current version of the court’s interpretation about the quotation provision. Num. ④ ruling is interpreting the quotation provision extremely broadly in the Internet era, to respond effectively against copyright disputes in the Internet space. It became unavoidable to reduce the shooting range of the quotation provision which had been expanded too far after the comprehensive fair use provision was introduced into the Korean Copyright Act on 2011. From that context, the Korean Supreme Court in Lyprinol case (num. ⑤ ruling) in 2013 returned to the position of the previous Num. ③ ruling by requiring not only the master-servant relationship but also the comprehensive consideration of various factors such as the purpose of the quotation. However, the position taken by Lyprinol case is unreasonable because such automatous requiring of the master-servant relationship could make the procedure of the comprehensive consideration meaningless and because it is illogical to conclude there always should be the master-servant relationship while interpreting a uncertain legal concept as ‘justifiable extent.’ To limit the scope of the quotation provision and finally to avoid a collision with the new comprehensive fair use provision, not to maintaining the outdated standard as the master-servant relationship but to interpret strictly the concepts such as “published work” & “quotation” which are relative certain to some extent is an appropriate way.