공정이용조항과 3단계 테스트의 관계

• 영문명: The Relationship between Fair Use and 3 Step Test -The Theoretical Study on Article 35 ter-
• 발행기관: 세창출판사
• 저자명: 김경숙(Kyungsuk Kim)
• 간행물 정보: 『창작과 권리』2012년 겨울호 (제69호), 130~166쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.12.01

영문 초록

Article 35ter, which became effective on 15th March, 2012, consists of '3 step test' and Fair Use principle. The 3step test was first provided under the Berne Convention as a standard of the limitations and exceptions for interpreting the scope of use which does not prevail against authors' interests. As transposed to the WCT and the TRIPs Agreement, the concept of three-step test has shifted so that it can strike a balance between the public interests and authors' rights. For example, while the '3 step test' under the TRIPs Agreement shall be interpreted on the consideration of articles 7 and 8 of the agreement, under WCT it shall be interpreted in accordance with the agreed statement of article 10 of WCT. Those articles exist to help striking a balance of the public interests. However, FTA(Free Trade Agreement) led by the developed countries with high-level IP protection is less careful about the public interests than multilateral agreements like TRIPs. Accordingly, like TRIPs or WCT, FTA also needs to stipulate a general provision or separate provision which might help to interpret the 3 step test less strictly. Otherwise, it is likely to be interpreted only for the authors' interests. A good example is AUSFTA. In terms of it, the fair use of the amended Korean Copyright Act is expected to make '3 step test' available for discretionary interpretation.

목차

Ⅰ. 들어가며

Ⅱ. 3단계 테스트의 의의

Ⅲ. 제35조의3 제2항 - 공정이용조항의 검토

Ⅳ. 결론에 갈음하여 - 제35조의3의 해석론

참고문헌

Abstract

키워드

3단계 테스트 공정이용 예외와 제한 TRIPs협정 베른협약 WIPO 저작권조약 자유무역협정 3 step test fair use the limitations and exceptions Berne Convention TRIPs Agreement WCT FTA