저작재산권침해에 있어서 실질적 유사성 요건과 그 판단기준

• 영문명: A Study on the Substantial Similarity Requirement in Copyright Infringement
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 오승종
• 간행물 정보: 『비교사법』비교사법 제10권 2호, 449~480쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.06.01

영문 초록

Copyright law gives the holder of a copyright the exclusive right to reproduce the copyrighted work, prepare derivative works, distribute copies of the work, perform the work publicly, display the work publicly and so on. Where another unlawfully violates a right protected under the law, it is copyright infringement. The first step in proving copyright infringement is to prove that the defendant copied the plaintiffs protected work. Evidence of copying may consist of the defendant's admission of copying, or circumstantial evidence from which copying can be reasonably inferred. Even if a plaintiff establishes copying, the plaintiff must also demonstrate that the defendant took enough protected material to constitute improper appropriation. 'Substantial Similarity' between the plaintiffs and the defendant's works is the touchstone for improper appropriation. However, the determination of how much similarity, resulting from the copying, is enough to qualify as 'substantial' is one of the most difficult questions in copyright law. Slight or trivial similarities are not sufficient to find substantial similarity, yet the works need not be identical. Thus, inevitably the matter becomes one of line drawing within these parameters. There are some tests which have been developed by the courts of U.S. to find the substantial similarity, such as the abstraction test, the pattern test, the total concept and feel test, and the dissection test. Each test has been discussed in this paper. It has its own merits and shortcomings. In copyright infringement cares, the line between idea and the expression of the idea will never be intelligibly drawn, and neither will be the line between substantial similarity and non-similarity. This paper is largely prepared to establish the standard for the determination of substantial similarity in copyright infringement cases.

목차

1. 서설

2. 저작재산권침해의 요건

3. 실질적 유사성(Substantial Similarity)

4. 저작물의 종류에 따른 검토

5. 맺으며

참고문헌

ABSTRACT