헌법적 공공복리와 저작재산권 제한으로서의 공정이용

This study investigated the constitutional standards for the legislation of limitations on author’s property rights including the fair use clause and examined the fair use determination factors adopted by domestic courts. As a result of examining the factors of fair use established to promote the public interest in the copyright law, ‘the purpose and character of use’ has been adopted most often. ‘The amount and substantiality of the portion taken’, ‘the effect of the use upon the potential market’, and ‘the nature of the copyrighted work’ followed in order. And overall, it showed similar tendency to US fair use cases. However, in the domestic courts, public interest or publicity has been partially considered in determination of fair use. The limitation clauses of authorship rights in our copyright law are based on “public welfare” of the Constitution. Therefore, it can bring about an inconsistency with our Constitution to adopt fair use determination factors established in the United States case law rather than ‘public welfare’ or ‘public interest’. In Japan, where the constitutional system is similar to that of Korea, the copyright law has been revised to consider the public interest in applying fair use. Social and legal discussions on whether public welfare can be accepted as a fair use determination factor would be necessary in Korea.