일본판 공정이용조항의 도입 논의 (Discussion on the Introduction of Japanese Fair Use)

서지정보

· 발행기관 : 한국경영법률학회
· 수록지 정보 : 경영법률 / 22권 / 1호 / 505 ~ 537페이지
· 저자명 : 김경숙

초록

Korea and Japan copyright legal systems take the civil law approach, also the reasons to limit the rights of copyright are also legally enumerated also so that a creator can predict the limitation of the rights. Therefore, when the copyright is limited, it is not available for the court to limit the copyrights by considering each case other than the reasons enumerated in the copyright law.
As a result, even if the use of a work that does not correspond to the legal limitation does not hurt the interests of owners as long as there is no permission from the copyright owner, the act is formally equivalent to infringement. However, there is a question about that the conventionally 'fair use' is considered as the infringement because the act does not correspond to the statutory limitations.
In Japan, it has also been interpreted that copyrights are strictly limited on special request such as the public interest work. Accordingly, the use of copyrighted works which would otherwise be copyright infringement shall be restricted to the cases enumerated in the law.
Until now, Japanese copyright law has corresponded to the use of a work requiring a new limitation, by creating a new limitation or revising the law. However, because the copyright limitations are provided for the adjustment of interests between copyright owners and users in order to conform to the promotion of the culture, the limitations must be interpreted not strictly but reasonably. This brought about the discussion of the introduction of 'fair use'.
This article will examine the Japanese-version Fair Use on the ground of the final report submitted by the Agency for Cultural Affairs.

영어초록

Korea and Japan copyright legal systems take the civil law approach, also the reasons to limit the rights of copyright are also legally enumerated also so that a creator can predict the limitation of the rights. Therefore, when the copyright is limited, it is not available for the court to limit the copyrights by considering each case other than the reasons enumerated in the copyright law.
As a result, even if the use of a work that does not correspond to the legal limitation does not hurt the interests of owners as long as there is no permission from the copyright owner, the act is formally equivalent to infringement. However, there is a question about that the conventionally 'fair use' is considered as the infringement because the act does not correspond to the statutory limitations.
In Japan, it has also been interpreted that copyrights are strictly limited on special request such as the public interest work. Accordingly, the use of copyrighted works which would otherwise be copyright infringement shall be restricted to the cases enumerated in the law.
Until now, Japanese copyright law has corresponded to the use of a work requiring a new limitation, by creating a new limitation or revising the law. However, because the copyright limitations are provided for the adjustment of interests between copyright owners and users in order to conform to the promotion of the culture, the limitations must be interpreted not strictly but reasonably. This brought about the discussion of the introduction of 'fair use'.
This article will examine the Japanese-version Fair Use on the ground of the final report submitted by the Agency for Cultural Affairs.

참고자료

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