저작권법의 보호대상이 되지 않는 지적 성과물의 모방도용행위와 일반불법행위법리의 기능

An imitative misappropriation act of the intellectual result thing of the property which does not become the protection object of the Copyright Act and the function of the general tort doctrine

The competition is free in a principle in a market. When a market latecomer sells similar article which does not infringe intellectual property rights, as for competition-related to grow, it may be said that such a latecommer's behavior is an act in the free competition range between a preceding market leader, Even if we say that it is an imitation act. Therefore, if we can evaluate such an imitation act of the market latecomer illegally. even if the preceding market leader does not depend on intellectual property rights, it follows that he may monopolize the sale in itself of the same kind article and that the possibility to obstruct development of the economy can occur. However, it can be evaluated to be out of a range of the free competition when the latecomer has a free ride in the result that the market leader has invested expense, effort and time, and when the latecomer intends to give the damage to the preceding market leader intentionally in it and infringes his business intents with the legally protective value in significantly unfair means. Concerning such an imitative misappropriation act, there is an necessity to relieve that preceding market leader to maintain market competitive system, and to contribute to market competition. But in such a situation, a collision of the value occurs and it needs a point of view of balancing of interests of the law. In a concrete case, after all, we cannot but rely on the general tort doctrine by the method to take the remedy to protect the intellectual result thing that the market leader invest expense, effort and time, if the wrongful act of the market latecomer, for example dead copy, can not meet the requirement of a copyright infringement. In this article, I would like to examine mainly on a copyright infringement case and try to consider whether the general tort doctrine is applied at a competition order maintenance point of view to protect the intellectual result thing that is not protected by the copyright in particular from that market latecomer's imitative misappropriation act.