소프트웨어(SW) 침해 시 손해배상의 남용 가능성과 공정한 산정 기준

Copyright Misuse and Fair Calculation of Damage in Case of SW Infringement

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Recently Software infringement disputes are on the increase. Copyright owner usually calls for excessive damages in case of Software infringement. The interests of the copyright owner and the user should be balanced with a reasonable damage calculation. A basic premise of intellectual property system is that various rights granted to creators as an incentive to produce intellectual property must be carefully balanced with the rights retained by the public. This study suggests method to estimate reasonable damages in SW infringement. This paper adapts the copyright misuse doctrine in relation with antitrust law. Blanket license and package license may be treated illegal in SW license. Among the themes of this field, excessive damages may equal to be a refusal to license. To calculate the fair damages amount, we should consider the discriminatory policy, reasonable royalties, SW technical value, the presence of alternative technology, royalty contract with third party. Software infringement damage should be calculated fair, concrete and reasonable amount.