미국 저작권법 제110조 제5항을 중심으로 한 저작권 제한에 관한 논의

Limitations and Exceptions on International Copyright Law

This paper explores limitations and exceptions in the international copyright regime. I start my discussion with the public domain because limitations and exceptions to copyright are in fact, limitations to the privatization of creative works. Therefore, limitations and exceptions to copyright should be discussed in connection with the public domain. The concept of the public domain reflects the balance between the private right and the public good in that society. Next I lay out the standard for limitations and exeptions to copyright in U. S., European Union, and Republic of Korea. Then I expand my discussion to the international level. I focus on the WTO Panel’s report regarding Section 110(5) of U. S. Copyright Act in 2000. In this case, WTO Panel embarked on a detailed interpretative analysis of provisions about limitations and exceptions on copyright laid down in Article 9(2) of the Berne Convention and Article 13 of the TRIPS Agreement. Article 9(2) of the Berne Convention and Article 13 of the TRIPS Agreement suggest the “three-step test” which provides a flexible, open provision offering much room for interpretation. In this case, WTO Panel explained the definitions of terms in Article 13 of the TRIPS Agreement such as “certain special cases,” “normal commercial exploitation,” “unreasonable prejudice,” and “legitimate interests of rightholder.” I analyze this case in depth hoping to offer not only WTO Panel’s opnion but also the analysis of EC and U. S. on the “three-step test.” Lastly, I criticize the uncertainty of U. S.’s fair use doctrine and inflexibility of EC’s approach aiming to suggest the proper standard for Korean fair use doctrine.