소프트웨어의 비어문적 요소의 저작물성과 입증책임 - CAFC SAS Institute v. World Programming Limited 사건을 중심으로

Copyrightability and Burden of Proof of Non-literal Elements of Software : Focusing on SAS Institute v. World Programming Limited of the CAFC

In the U.S. CAFC in SAS v. World Programming decision, the court dealt with the burden of proof of whether non-literal elements of computer program constitute copyrightable works. The decision is based on the premise that non-literal elements of computer program can be protected. Since the dead copy of software is mainly dealt with in Korean case law, it may not be useful of the decision. However, if the effort, time, and cost of developing non-literal elements greater than coding, the possibility of protecting non-literal elements should be left open. Abstraction-Filtration-Comparison test adopted by the decision is also adopted by many US courts. However, in this case, the court held that the filtration stage is the issue of copyrightability and that the defendant properly proved the unprotectable elements, so the burden of proof shifted to the plaintiff. And it held that the plaintiff was deemed to have failed to prove. In this point, there is a debate over the position of filtration stage as copyrightability or defense of infringement. The dissenting opinion points out that the two stages are distinguished and applied different legal principles. But when a court dealt with two issues concurrently, there seems to be no problem even if standing in the majority opinion. The dissenting opinion can be understood as the district court denied copyrightability after insufficient examination. In the case of Korea, the burden of proof or specificity of claim ultimately lies with the plaintiff. However, considering the structure or nature of copyright infringement litigation related with computer program, the court need to consider in discretion through expert evidence. So the central issue will be how to appropriately perform the decision process of appraisal matters or supplementation of appraisal results, rather than the issue of burden of proof.