저작권의 정당한 행사와 시장지배력 남용 문제에 대한 고찰: 지멘스 사건(대법원 2024. 11. 28. 선고 2020두36892 판결)을 중심으로

The Siemens case was the first in South Korea to test whether the exercise of copyright could constitute abuse of dominance under the Monopoly Regulation and Fair Trade Act (MRFTA). The Supreme Court held that the conduct in question was a legitimate exercise of Siemens’s copyright. On that basis, ex Article 59 (now Article 117) operates as a statutory safe harbour: the MRFTA’s abuse- of- dominance provisions do not apply, and no assessment of anticompetitive effects is required. Nevertheless, the Court proceeded to analyze the anticompetitive effects of the very conduct it had already placed within the intellectual property safe harbour. This approach produced doctrinal incoherence. The Court further opined that a legitimate exercise of copyright may be treated as “abuse” under a margin- squeeze theory of harm. That position is difficult to accept, because refusal to license—the conduct that essentially underlies a margin squeeze—constitutes a legitimate exercise of rights under copyright law. Accordingly, the MRFTA cannot apply even if such conduct produces anticompetitive effects. If courts continue to follow the approach taken in the Siemens, Article 117 would be undermined by requiring unnecessary market definition and anticompetitive effects analysis. Such an approach risks eroding the legitimate scope of copyright, blurring the line between lawful exercises of rights and anticompetitive conduct, and inducing unintended error.