While imitation was respected for more than 500 years in the Chosun Dynasty, creativity and originality is now of much more value than before as Korea moves toward a knowledge-based society. In parallel with the increase in the economic value of knowledge, demands for creative ideas and original expression have grown up rapidly for the past few decades. Accordingly, an increasing number of disputes have centered around the idea/expression dichotomy and any similarity between a copyrighted work and allegedly infringing work. Supreme Court of Korea has shown its sconflicting views on idea/expression dichotomy and originality criteria. For example, while it required a very low level of originality with regard to a eye-test chart, it denied copyright protection for a photograph made for a purpose of merchandise catalogue on the grounds that originality or artistic elements in the photograph in question was not enough for copyright protection. It is interesting to see whether these apparently conflicting views of the Supreme Court might affect its decisions on substantial similarity in cases of copyright infringement. This paper then moves on to the main topic of the substantial similarity test. Having found that there are relatively few decisions on the substantial similarity, the author first tries and introduces to the paper a brief analysis of various tests adopted by U.S. courts, which are found as unanimous in distinguishing artistic works from functional works. In the field of artistic works, there often exist a variety of ways of expressing the same idea and, accordingly, artistic works are granted a broad scope of copyright. By contrast, functional works are given relatively thin copyright since their expression is often limited or directed by their functions themselves. When courts in Korea face artistic works, however, they appear to have difficulty in dealing with copyright protection for plot, characters, events in novels or dramas. The author argues in this paper that, since detailed plot, characters, and events in artistic works are mostly the gist of original expression in the works, substantial similarity in the detailed plot, characters and events must be a good evidence of copyright infringement. Especially, broadcasting companies and film companies are the major figures in cultural industry which produces and distributes artistic works, judicial decisions on any copyright infringement by broadcasting companies or film companies might have significant impact upon economic incentives to creation and, thus, upon the just budding market of culture. It remains to be seen how the judicial courts answer the question of the scope and extent of copyright protection for creative or original elements and the task for tackling plagiarism in Korea.
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