Earticle

초록

영어

In the copyright area of South Korea where many right holders often give up time and cost consuming litigations as an effect of extreme vulnerability to infringement, so far there is no en banc decision by Korean Supreme Court. Considering the purpose of this academic seminar to deal with an en banc decision itself or any related case by Korean Supreme Court, I inevitably analyzed the recent case, the position of which should be changed by a future en banc decision. It is the Korean Supreme Court panel’s decision 2012do13748 decided on Mar. 12, 2015 which ruled that aiding and abetting liability could not be imposed though the criminal defendant made a link to copyright infringing materials. By clarifying that any linking activity cannot fall on aiding and abetting or indirect infringement, this decision goes one step forward from the standpoint of existing precedents which ruled a linking is hard to be a direct infringement such as reproduction or transmission itself under the Korean copyright law. However, such a conclusion is colliding with the positive stance of the Korean Supreme Court in “Pantie Newspaper” case recognizing that a linking to porn is equal to displaying the porn and is not fitting at all with the Article 102 of the Korean Copyright Act providing the limitation of liability for online service provider, which provision is clearly based on that the service provider could be liable for its linking service under the aiding and abetting theory. Also, the conclusion is problematic because, from the perspective of policy, it is likely to unduly encourage copyright infringement rather than to uplift the freedom of the Internet and it is not matching with the other countries’ attitudes which commonly admit the possibility to impose at least the indirect or secondary liability on a linking activity. So, it shall be modified well by a future en banc decision by the Supreme Court. In addition, it should be kept in mind that Korean Courts have committed logical mistakes in many cases including this 2012do13748 decision, partly because the specific characteristic of copyright law makes it too hard and too effort-consuming to accurately analyze the combination of complex copyright divided into as many as ten individual sub-rights and much more complex fair use provisions. All copyright stakeholders should devote much more effort to address the complement of copyright legal system related to respond effectively to the infringement rather than to concentrate the above effort-consuming analysis. It is likely to be a clear shortcut by which we can expect various court cases including en banc cases in Korean copyright area. Besides, as this article shows the example by relying on Korean criminal law in trying to find an appropriate solution for the criminal case of copyright infringement, the much more important thing is to harmonize and cooperate with impeccable logic that is already taken in the adjacent laws which is also a part of the overall Korean Law, not to analyze the related trend of foreign intellectual property laws.

목차

I. 이 글의 배경설명
  1. 장차 저작권 분야 전원합의체 판결을 기대하며
  2. 대법원 2012도13748호 판결을 파기하는 전합판결 필요성
 Ⅱ. 이 사건 판결 및 원심 판단의 개요
  1. 사안의 개요 등
  2. 항소심 판결 등 하급심 판단의 내용
  3. 이 사건 판결의 내용
 Ⅲ. 이 사건 판결의 문제점 검토
  1. 종전 판례의 태도와 상호모순성
  2. 저작권법 제102조의 명문에 배치됨
  3. 링크의 자유에만 치우친 편향성
  4. 링크의 기술적 유형이 가진 차이를 무시한 획일적 취급 문제
  5. 권리의 다발인 저작권의 특징을 정확히 고려하지 아니함
  6. 소결
 Ⅳ. 이 사건 판결의 문제를 극복한 타당한 법적 논리의 구성
  1. 링크로 인한 저작권침해문제의 민사 ․ 형사적 판단논리의 구조 등
  2. 이번 형사 사건에의 적용
 Ⅴ. 결론
 참고문헌
 

키워드

저자

• 박준석 [ Park, Jun-Seok | 서울대학교 법과대학/법학대학원 부교수 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  산업재산권 [Journal of Industrial Property]

• 간기

  계간

• pISSN

  1598-6055

• eISSN

  2733-9483

• 수록기간

  1995~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 367 DDC 346