저작권법상 실질적 유사성에 관한 고찰－어문저작물(소설 및 드라마 저작물)을 중심으로－

초록

Substantial similarity is the standard developed and used by courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement was limited to making only exact and complete reproductions of a work. Many courts also use “substantial similarity” to describe the level of similarity necessary to prove copying has occurred. A number of tests have been devised by courts to determine substantial similarity. These may rely on one or both of expert or lay observation and may subjectively judge the feel of a work or critically analyze its elements. Courts give fictional literary and dramatic works basically the same substantial similarity analysis. To determine whether two fictional literary or dramatic works are substantial similar, courts generally analyze seven concrete element such as plot/sequence of events, dialogue, theme, mood, setting and pace, and they also evaluate the overall impression creates by the works at issues. this article examines the test of substantial similarity in copyright law.

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