저작권법상 법정손해배상의 법적 성질

Looking at the history of U.S.A. Copyright Act, Statutory damages were to the minimum compensation to copyright holders because of the difficulty of estimating actual damage and were to limit the excessive damages by multiplying copied work and simple arithmetical calculation together. However from the 1976 Copyright Act, the court has considered the preventive and punitive function in no uncertain terms and statutory damages in art. 504(c) were away from the actual damages or compensatory damage by differently providing willfully and innocent infringement. It is clear that statutory damages in Korean Copyright Act, introduced form U.S.A., have punitive elements which are the provision of “intention for the aim of profit”, permission of it in spite of the proof of actual damages or profit, the position of case law, and the provision of prevention in KOR-U.S.A. FTA art. 18.10(6). However because there are compensative damages characters, based on no adoption of the lower limit, historically compensative damages characters, I can not affirm that statutory damages are punitive. We should not regard statutory damages, newly introduced in korean law system, as a different in kind and exclude it owing to the danger to use for interests of the United States. We have to well use it, considering the purpose of introduction and legal character of it.