저작권법상 공정이용 판단기준과 그 적용 - 2차적 저작물 작성권과의 구별 및 썸네일 사건을 중심으로 -

Whileas we had enumerated a specific set of limitations on copyright in the Copyright law, we adopted the general provision such as Fair Use provision in amending the Copyright law, pursuant to Korea-U.S. FTA execution in December, 2011. This provision seems to lay a foundation to coordinate the conflicting interests between copyright owners and its users in this technically and economically fast changing society. Therefore, the interpretation of this Fair Use provision is so crucial. Considering that this Fair Use provision was originated from the U.S. case law, we need to study and research the cases of the United States, and the criteria for interpreting this provision. This article concentrates on how the interpretation of this provision has been developed and the Transformative Use doctrine, presently the most prominent theory. However, this Transformative Use doctrine is facing the criticism that it does not provide the explicit distinction from Derivative works, resulting in nullifying Derivative works. This article proposes the solution for this problem. In addition, this article will review whether the thumbnail function of internet search engine may be included and therefore be protected as Fair Use, according to Transformative Use doctrine. Especially, the Korean courts have solved the problem of Thumbnail case, pursuant to Article 28 of Copyright Law, the Published Copyrighted Work. Predictably, the problem will be solved through the direct application of Fair Use provision in the amended Copyright Law. The amended Copyright Law has expanded the scope for the protection of the copyright owners, placing the users in dismay. The reasonable interpretation of this Fair Use provision only can abolish the worries of the users, and put the conflicting interests between the copyright owners and its users in harmony.