공정이용의 판단에 있어 출처명시의무 고려 여부에 대한 검토

This study examines the relationship between Article 35-5 (Fair Use of Works) and Article 37 (Indication of Source) of the Copyright Act, focusing on whether failure to comply with the obligation to indicate the source should be considered in determining fair use. Recent trends show that such failure negatively impacts fair use defense. The prevailing view is that the obligation to indicate the source is a legal requirement when using a work under copyright limitations, and failure to do so does not constitute copyright infringement. This is supported by the difference in penalties for violating this obligation from copyright infringement. The nature of this obligation should be understood as a passive immunity provision, with considerations for possibility, feasibility, necessity, and practical benefits when determining exceptions. In the United States, where the fair use doctrine has been developed, attribution － similar to source indication － is not typically considered an essential factor in fair use determination. In Japan, which has a similar copyright system but lacks a comprehensive fair use provision, source indication is often considered when evaluating 'fair practices' in quotation provision. The study concludes that failure to comply with the source indication obligation should be treated separately from copyright infringement and should not be uniformly considered in fair use determinations. While there may be room to consider source indication in cases involving 'fair practice' judgments, it is unreasonable to dismiss fair use defense solely based on violating this obligation. The study recommends amending Article 37 to provide exceptions for unavoidable cases where source indication is difficult, thereby promoting the vitality of Article 35-5.