총 44페이지

13
VoiceofWisdom
protected,sinceotherwisetheplaywright
could prevent the use of his ideas, to
which, apart from their expression, his
propertyisneverextended.”
The definition of ‘pattern test’ from
ZechariahChafee,is“Ifweprotectmore
thanprecisewords,whereshallwestop?
The line is sometimes drawn between
anideaanditsexpression.Thisdoesnot
solve the problem, because expression
Nowaday,plagiarismisrampantinsociety.Ingraduationday,wealwaystrytokeepaourconscience
has too wide a range. To some extent,
formortarboardsymbolizedtheacademicachievement.
theexpressionofanabstractideashould
Actandenablesittoworkeffectivelyin
similarity test’ in copyright law is one
be free for use by others. No doubt, the
digitalage.
of the most requirements in judging
line does lie somewhere between the
Copyrightisintangibleeconomicright.
copyrightinfringement.Needlesstosay,
author’s idea and the precise form in
In Romano-Germanic Law (Continental
oneofthedifficultproblemsistodrawa
whichhewroteitdown.Iliketosaythat
Law), copyright is focused on the
clearlinebetweenideaandexpressionin
the protection covers the pattern of the
author’s right, but in Anglo-American
judging ‘substantial similarity’. Learned
work. This is not a solution, but I find
Law(CommonLaw),itisfocusedonthe
Hand’s abstraction test, Zechariah
it helpful as an imaginative description
copyrightitselfasaneconomicright.
Chafee’s pattern test, the total concept
of what should not be imitated. Some
In the modern day, copyright is
and feel theory as a audience test, and
resemblanceincharactersandsituations
composed of the author’s personal
the success filtration approach test as
was inevitable and permissible, but that
rights and economic rights. Unlike the
other formulations are presented as the
the pattern of the play - the sequence
author’s economic rights, the author’s
barometers to draw a line between idea
of events and the development of the
personalrightsprotectthemoralbenefits
and expression on judging ‘substantial
interplay of the characters - [could] not
of the author and belong exclusively
similarity’.
be followed scene by scene without
to the author. Also, these rights are
The implication of ‘abstraction test’ at
constitutinganinfringement.”
available independently of the author’s
“Nichols v. Universal Pictures Co., 45
The information age that has dawned
economic rights while the latter rights
F.2d119,121(2ndCir.1930)”is;“When
with the IT revolution is changing the
are restricted. The Korean copyright act
plays are concerned, the plagiarist
logic of power entirely. In the past,
provides the right to publish the work,
may excise a separate scene or he may
militarypowerwasequivalenttonational
to claim authorship of the work and
appropriate part of the dialogue. Then
power. Then, with the occurrence of
to maintain the sameness of the work
thequestioniswhetherthepartsotaken
industrialization, economic power came
as well as a stricter protection of the
is substantial, and therefore not a fair
to indicate national power. That is, the
author’spersonalrightsafterthanbefore
use of the copyrighted work; it is the
rich countries were the most influential
his death. The author’s economic rights
same question as arises in the case of
countries. However, as the information
can be restricted when their work does
any other copyrighted work. But when
agedawnedovertime,thepowerofany
not correspond with the public benefit
the plagiarist does not take out a block
nation came to be influenced by culture
from the harmonious uses of works.
in situ, but an abstract of the whole,
and information. The same applies on
This is that what we so called “fair use
decision is more troublesome. Upon
individuals. In the agricultural society,
doctrine”incommonlaw.
any work, and especially upon a play, a
the physically strong was the strongest;
The object of the copyright law
great number of patterns of increasing
in the industrial society, the rich was
protection is ‘expression’ by “idea-
generality will fit equally well, as more
the strongest. Then, as the information
expressiondichotomy”.
andmoreoftheincidentisleftout.The
age came about, individuals practicing
‘Access’ and ‘substantial similarity’
last may perhaps be no more than the
intellectual property rights such as Bill
are the most important two criteria of
most general statement of what the play
Gates emerged as more influential than
copyright infringement. Even though
is about, and at times might consist of
thephysicallystrong.Suchtrendislikely
themeaningof‘substantialsimilarity’is
itstitle;butthereisapointinthisseries
to continue if not reinforced as time
uncertainandabstractinlaw,‘substantial
ofabstractionswheretheyarenolonger
passesandcultureprogresses.
JUNE 2010

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