저작권법상 인용에 관한 고찰

A Study on quotations from a work already made public

According to Section 28, notwithstanding exclusive rights of copyright owner, quotation from a work already made public is not an infringement of copyright if it is made for purpose such as news reporting, criticism, education, and research, etc., within a reasonable limit and compatible with fair practices. By amendment of 2011, fair use is now expressly incorporated in the statute for the first time, in Section 35-3. Before this amendment, in determining whether the use made of a work in any particular case is a fair quotation within a reasonable limit, courts considered several factors such as the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. However, they are elements which should be reviewed in the disposition of the fair use defense and enumerated in Section 35-3. This article is about difference between fair use and fair quotation. In this respect, the following issues have been discussed; what is an essential factor differentiates quotation from other use of works; and what is required for quotation within a reasonable limit. This article focuses on the relation between quoting-work and quoted-work and explains that balance between them will make that difference.