음악저작물을 이용한 노래비(碑)와 노래가사지에 관한 저작권법상 공정이용 법리의 적용 여부 - 대법원 2024. 7. 11. 2021다216872, 2021다216889 판결을 중심으로

Whether the fair use under the Copyright Act applies to song monuments and song lyrics using musical works : Focusing on the Supreme Court Decision, 2021Da216872, 2021Da216889 Decided July 11, 2024

The Trust Act stipulates that an intellectual property right is the subject of trust property. On the other hand, the Copyright Act does not provide provisions regarding the definition of a copyright trust. Therefore, a copyright trust is a type of trust under the Trust Act. A copyright trust is a form in which the author, as the settlor and beneficiary, transfers his or her copyright to a copyright trust service provider and receives the profits generated from the copyright. Once a copyright trust is established, the copyright is completely transferred to the copyright trust service provider, so the settlor can no longer exercise authority over the copyright. Article 35-5, Paragraph 1 of the Copyright Act stipulates the three-step test. In order to pass the three-step test, it must be certain special cases, must not conflict with the normal exploitation, and must not unreasonably prejudice the legitimate interests of the author. In this case, the three-step test was passed. Article 35-5, Paragraph 2 of the Copyright Act stipulates the fair use. In order to determine whether it is fair use, purposes and characteristics of use, types and purposes of works, amount and substantiality of portion used in relation to the whole works, effect of the use of works on the existing or potential market for the works or current or potential value thereof must be considered. The provisions on the fair use were introduced in the revised Copyright Act of 2011, and since this case is a case prior to the revised Copyright Act of 2011, the provisions on the fair use cannot be applied. Even if the provisions on the fair use can be applied to this case, considering the aforementioned factors comprehensively, the use of the work in this case cannot be considered fair use.