저작권의 철학적 기반에 관한 소고: 18세기와 19세기의 독일 법철학 연구를 중심으로

A discussion of the philosophical foundations of copyright that we primarily encounter in copyright textbooks is based on John Locke's theory of labor, Jeremy Bentham's utilitarianism, and certain extracts of philosophical writings of Immanuel Kant and Georg Wilhelm Friedrich Hegel. More recently, the theory of human rights and law and economics also get a mention. However, it is difficult to find an in-depth discussion of the philosophical origins of copyright, notwithstanding references in some more advanced textbooks of Johann Gottlieb Fichte's proprietorship in one's mental endeavours and such. In order to understand the nature of any right, it is necessary to understand the underlying theories of that right. Copyright law has always been dependent on an defined by the advancement of technology. In recent years, we have seen hitherto unimagined leaps in information and communication technology which have inevitably made significant impact on copyright law. Furthermore, although Korea has a civil-law based system of law, our copyright law has been substantially influenced by US copyright law, to the extent that we have overlaid a general purpose exception of fair use on top of the continental style enumerated copyright exception clauses. How this melange will work is still an ongoing experiment, it seems. What is clear is that these amendments have transformed the existing equilibrium between the users and rightsholders of copyright and has resulted in expanding the interpretative role of the court. The aforementioned development of information technology has made it possible to create and use various types of works that have not been thought of so far, and it is often difficult to judge how these new creation and user behaviors should be interpreted under the current copyright law system. To prepare for the future, we need to understand the past. In order to prepare for the changes that are necessary in the arena of copyright in the 21st century, we need a firmer grasp of the philosophical foundations of copyright law to aid us better to interpret and apply the law, and for the desirable development of the law. More specifically, there are fundamental differences between the concept of property rights in the continental law system and the concept of property rights in the Anglo-American legal system. Based on the legal system of the continental law system, we of course also apply the concept of property rights to the intellectual property rights of the continental law system. Recently, however, due to the free trade agreement, the US has been significantly influenced by the intellectual property law, and various laws have been amended to introduce the concept of Anglo - American law in this field. Copyright law is the most influential field of expertise. Therefore, understanding the difference of basic philosophical concepts of each system will help to interpret the law properly and it is necessary for future development.