저작권 침해의 구성요건으로서 공정이용 법리의 역사적 고찰

In the United States, fair use doctrine exempts fair users from liability from certain modest uses of copyrighted work. Courts have considered all of the four statutory “fair use factors” in Section 107 of the Copyright Act in order to determine if a particular use of copyrighted work falls within the parameters of fair use, or is instead copyright infringement. These factors are the (1) purpose and character of the use; (2) nature of the work; (3) amount and substantiality of the portion used in the newly created work; and (4) effect of the use upon the potential market for or value of the copyrighted work. At this present, the fair use doctrine is understood as an affirmative defence raised by a defendant in the infringement lawsuit. By the way, in Folsom v. Marsh in 1841, the court first had considered fair use doctrine as the factors for judging copyright infringement. The test for copyright infringement now requires a valid copyright in the original work, actual copying, and substantial similarity between the original and the copy. It does not fully examine all of four factors of fair use since it has become an affirmative defence. The policies of copyright system in Korea and all over the world have expanded the exclusive rights for copyright holders, and strengthened the regulations to prevent the copyright infringements. However, this trends of policies causes the concerns about disturbing use of the fair use doctrine and interfering with cultural development. There has also been increase of need for “diversity of expressions” which is the heart of freedom of expression as development of the Internet and digital technologies. This paper insists that courts should consider fair use factors when they determine judgement of copyright infringement at outset. This approach strikes not only a balance between the interests of the right holders and interests of fair users, but also reasonably achieves the ultimate goal of copyright law, development of culture and relevant industries.