저작권 침해로 인한 손해배상액 산정 - 컴퓨터 프로그램 저작물을 중심으로 -

According to the traditional opinion of compensation for damages, which is ‘the theory of balance’, damage is calculated as a monetary difference between non-breaching conditions and breaching conditions. However, this theory does not admit damages without monetary loss. The normative damages theory evaluates the concept of damages from normative perspective and accepts the case without monetary loss as a damage. In the incident of the illegal duplication of the computer program works, such as softwares, even though there is no monetary loss before and after the infringement, there can be an actual loss, as the scarcity and the value of the work decreases. The normative damages theory is attractive in this case as it considers this actual loss, unlike the margin damages theory. I do not agree with the judgement of Seoul High Court on January 15, 2015(Case No 2014 Na 2024301). The judgement imposes not only the lost profits (which means the total amount of multiplying resale price of each pirated software copy by the number of illicit copies) but also the license fees (the same money as the lost profits) about the period of illegal use. Her judgement concludes in the same way as ‘punitive damages’, which is not accepted in korean copyright law system. According to Article 1 of the Copyright law of Korea, when resolving the conflict between the copyright holder and the user, the balance of interest of the two parties should be considered. Therefore, the compensation for lost profits in case of the computer program works should be set regarding the theory of net profit and the damages for royalties which is not recovered by the lost profit should be compensated proportionally to the period of infringement.