선의의 저작권 침해에 관한 법률문제

This article discusses the protection of innocent copyright infringers whose unintentional infringements are triggered by the copyright related transactions. As registration is not the premise of copyright subsistence, a third party can infringe other’s copyright due to the misidentification of right holder. Considering wide variety of copyrights are under licenses and transactions, the indifference for these innocent infringers may cause obstruction of flow and exploitation of copyrighted matters due to the increase of 'Transaction Cost', which damages social benefit. The measures to protect innocent copyright infringers could be pursued in monetary remuneration, injunction and through amendment of copyright provisions. As for the damages, reduction reflecting simple negligence of infringer and contributory negligence of right holder shall be considered. In accounting the unjust enrichment to be returned, Civil Code Art. 748(1) shall be applied limiting the scope within 'remaining possession'. After the infringer is noticed of infringement through right holder's warning or law suit, such an escape valve will disappear. On the other hand, the injunction against innocent infringement may be limited regardless of the notion while it initially began in good faith. Injunction needs to be restricted for innocent infringement under certain conditions given the right holder is compensated enough with damages. German copyright act has relevant provision. In the U.S. many scholars support such idea on various grounds, and Japanese copyright act provides innocent infringer’s safe harbor against some sorts of property right infringement. Lastly, this paper proposes amendment of several copyright act provisions including the adoption of 'Simple Negligence Immunity', restrictions or discretion for injunction order and 'Bona Fide Acquisition' or 'Prior Use Right' for copyright.