저작권 제한원리의 헌법적 해석

• 영문명: The Constitutional Basis for Restrictions on Copyrights
• 발행기관: 중앙대학교 법학연구원
• 저자명: 김송옥(Kim Song-Ok)
• 간행물 정보: 『법학논문집』法學論文集 第30輯 第2號, 259~284쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.30

영문 초록

  Digital technology seems to bring about changes on two grounds. First, by enabling the making of perfect copies of copyrighted works for little cost, digital technology threatens to increase unauthorized use of copyrighted works. Second, digital technology increases the public’s access to others’ creations by enabling authors to create and distribute works of all kinds through the internet.
  The world, however, have concentrated on the first situation, and almost all countries have been strengthened the protection for authors by reforming their own Copyright Act. For example, U. S. Congress enlarged the duration of copyrights by 20 years in the 1998 Copyright Term Extension Act(CTEA), it is likely to influence on other countries.
  The limitation of a tendency like this is necessary, so this article is to look into the constitutional basis for restrictions on copyrights and for balancing between public and private interests.
  The Copyright Clause, Article 22, Section 2 of the Constitution, provides as to copyrights: “the rights of authors are protected by law.” The authority to issue copyrights stems from the same Clause in the Constitution that guaranteed the freedom of Knowledge & Arts. It is explained that the Clause is “both a grant of power and a limitation” and that the congress may not overreach the restraints imposed by the implied constitutional purposes, ‘discovery of truth’ and ‘cultural progress.’ It is intended to encourage the creativity of authors by granting of exclusive rights to their respective writings and discoveries. But the requirements of originality, idea-expression dichotomy and that those exclusive grants be for limited times serve the ultimate purpose of promoting the progress by guaranteeing that useful information will enter the public domain.
  In addition to spurring the creation and publication of new expression, copyright law contains built-in Freedom of Speech accommodations. For the right to receive or have access to information and the free flow of idea, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. After all, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright"s purpose is to promote the creation and publication of free expression.
  Accordingly, I analyzed that the general principles as mentioned above is still valid in the Digital Age, and that some provisions of the Copyright Act in force fail constitutional review under both the Knowledge & Arts Clause and Free Speech Clause’s guarantee.

목차

Ⅰ. 서론 : 저작권의 강화 현상
Ⅱ. 정보의 유통과 통제, 그리고 저작권
Ⅲ. 저작권의 내재적 한계
Ⅳ. 언론ㆍ출판의 자유에 의한 한계
Ⅴ. 결론

키워드

저작권(copyright) 지적재산(intellectual property) 공공영역(public domain) 사회진보(progress) 언론의 자유(free speech) 재산권(property right) 디지털 딜레마(digital dilemma)