창작과 표절의 구별기준

Abstract

While imitation was respected for more than 500 years in the Chosun

Dynasty, creativity and originality is now of much more value than before as

Korea moves toward a knowledge-based society. In parallel with the increase

in the economic value of knowledge, demands for creative ideas and original

expression have grown up rapidly for the past few decades. Accordingly, an

increasing number of disputes have centered around the idea/expression

dichotomy and any similarity between a copyrighted work and allegedly

infringing work.

Supreme Court of Korea has shown its sconflicting views on idea/expression

dichotomy and originality criteria. For example, while it required a very low

level of originality with regard to a eye-test chart, it denied copyright

protection for a photograph made for a purpose of merchandise catalogue on

the grounds that originality or artistic elements in the photograph in question

was not enough for copyright protection. It is interesting to see whether these

apparently conflicting views of the Supreme Court might affect its decisions

on substantial similarity in cases of copyright infringement.

This paper then moves on to the main topic of the substantial similarity

test. Having found that there are relatively few decisions on the substantial

similarity, the author first tries and introduces to the paper a brief analysis of

various tests adopted by U.S. courts, which are found as unanimous in

distinguishing artistic works from functional works. In the field of artistic...