저작권법상 의거성에 관한 검토

초록

Dependence is a special infringement requirement only required by copyright infringement litigation in the field of intellectual property law. Since the copyright law does not mention dependence at all, the concept or legal basis of dependence is not clear. However, what is clear is that dependence is required to confirm whether or not it was created independently. Dependence and substantial similarity, which are described as copyright infringement requirements in most textbooks, are requirements for identifying objects of rights in which copyright is effective. Unlike other intellectual property rights that confirm the object of the right only by interpreting the scope of protection, copyright infringement litigation require dependence additionally. However, since dependence is mostly presumed by indirect facts, the concept of dependence is explained as an indirect fact that the copyright holder must prove. It is impossible to clearly define the concept of dependence with these indirect facts. This paper proposes that 1) the concept of dependence should be considered separately from the issue of the burden of proof, 2) dependence should not be judged only as a matter of recognition or access, and 3) the concept of dependence should be defined by focusing on ‘independent creation’ or ‘contribution of the original work’. Dependence is a requirement that must be determined through a comprehensive judgment on the ‘probative similarity’ that is difficult to explain by coincidence and the ‘creative process’ such as the creative intentions or changes that led to completion of the defendant's work. In particular, in order to judge the dependence of artificial intelligence products, it is necessary to seek an agreement on how far the scope of ‘independent creation’ can be recognized in various cases, such as subconscious copying or indirect approaches by idea extraction.

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