저작권법상 공정이용(Fair Use)의 판단기준 - 대법원 2024. 7. 11. 선고 2021다272001 판결 평석 -

The fair use clause of Article 35(5) in the Korean Copyright Act was introduced in 2011, modeled after Section 107 of the U.S. Federal Copyright Act. The abstractness of the fair use provision is intended to balance the interests of copyright holders and the public through flexible application responding to changing environment surrounding the use of copyrighted materials. In order to fulfill its purpose in our system of statute law, there has been urgent request for clear judgment standards in addition to accumulating sufficient cases. In this regard, the Supreme Court's decision in the subject case which presented the standards for interpreting the fair use clause after 12 years since its introduction is somewhat belated but still welcome. The standards set forth is generally consistent with the text of the clause. It is also positive to note that the standards reflects U.S. federal courts’ precedent relatively closely. However, there are also flaws in the decision that dilute its value as an important precedent for the fair use clause. Therefore, this article examines the similarities and differences between Korea’s and the United States’ fair use provisions, and reviews the doctrines found in the federal court cases concerning the U.S. fair use provision in Section III. Based on this, reviewed are the following problems with the subject judgment: the lack of clarity in identifying the relationship between the fair use clause and the other individual limiation/exception clauses; some inadequacies in the explanation and application of each of the first through fourth factors of the fair use which appeared to be caused by misunderstanding of the meaning of the corresponding test in U.S. case law, as well as the risk of circular arguments inherent in the subject decision’s consideration of other factors in Section IV. Despite the above problems, the subject decision is an important precedent for its presentation of the fair use standards. In order to ensure that the standards set forth in the subject decision remains a valid guiding principle in various cases in the future, lower courts should pay attention in its application of the standards set forth in the subject decision, remaining keenly concious of the consistency with U.S. precedent. And ultimately, it is hoped that the flaws in the subject decision indicated in this article will be corrected through other Supreme Court decisions.