공정이용조항과 3단계 테스트의 관계 ―저작권법 35조의3의 이론적 고찰―

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 inter- pretation.