저작권법 제35조의3의 적용을 위한 공정이용 판단기준에 대한 소고–미국법원의 공정이용에 대한 판례동향과 시사점–

As the fourth industrial revolution is being progressed, the copyrights fragmented as a number of pieces could be the stumbling blocks for the progress of the contents industry and the innovation of the technology. Considering these points, the works done by the copyright act is to reduce the transaction cost associated with the usage of the copyrighted works. In other words, to find the balanced point between the protection of the creators and utilization of the copyrighted works is the mission of the copyright act in my opinion. For this purpose the Copyright Act 35-3 which adopted US style Fair Use Doctrine in our legal system becomes more important than ever before. The problem of Copyright Act 35-3 is the difficulties of giving a clear guidance to the users of this clause. Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved by the court. In US, already lots of cases are decided by the Court but not in Korea. This makes it difficult to be argued and agreed by the court because of this lack of precedence cases. In US Judges use four factors to resolve fair use disputes and the courts are free to adapt to particular situations on a case‑by‑case basis. The four factors in US copyright act are the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. In doing so, the fourth factor and the transformative use is the prevailing factor in deciding the applicability of the fair use. This trend of US court is to be the good reference in applying the Copyright Act 35-3 before our court will accumulate a heap of cases of our own.