공정이용법리의 기원과 의의

Origin of Fair Use Doctrine of Copyrighted Works - Proposal of a Fair Use Provision to Secure Public Domain

The purpose of this article is to find out the theoretical background that explains why copyright shows more exclusivity than that of patent or trademark rights. Among various subjects in copyright area, this article focuses on the origin and historical developments of the fair use doctrine in the English and U.S. jurisdiction. For this purpose, Part II of this article introduces the facts and holding of the U.S. case that, for the first time, mentioned the fair use factors, that is, Folsom v. Marsh in 1841. Part III examines the historical developments of the two polar legal theories that justifies copyright: natural law theory and utilitarian theory. Based on the discussion in Part III, Part IV evaluates ‘fair use doctrine’ in Folsom as expanding the scope of copyright, rather than limiting it. Folsom ignored then established utilitarian approach of the Supreme Court, and became the cornerstone of natural law approach of the copyright jurisdiction. Part V evaluates article 107 of the 1976 Copyright Act from the utilitarian perspective. Finally, this article proposes a fair use provision to secure public domain.