온라인서비스제공자의 저작권 침해책임에 관한 한국에서의 입법 및 판례 분석

Abstract

이 글은 중국과의 공동학술회의에 발표하기위해 한국의 관련 입법, 판례 등을 간명하게 정리, 분석하면서 필자 자신의 기존연구들을 체계적으로 연결한 것이다.

The legal structure on the secondary liability of Online Service Provider is roughly divided into two parts, liability requirement and liability limitation requirement. The series of Sori-Bada cases had made it a firmly established theory that the clause 3 of article 760 of the Korean Civil Act, which provides the abettor or aider shall be considered as a joint tortfeasor, was the exact statutory ground for the secondary liability requirement of OSP. In granting injunctive relief for just a tort, Korean courts fill the logical gap by underlining specific policy reasons. It seems really interesting that Korean courts have adopted the aider liability theory originally developed in online copyright infringement cases as the general principle about a service providers secondary liability for all kinds of infringement on the internet. The notice and take-down scheme in the provisions for online service providers liability limitation in the Korean Copyright Act were heavily affected by DMCA in the US. But the usual effect related to immunity is no more than discretional mitigation or exemption in Korea. The Korean Copyright Act amended in 2007 established peculiar articles related with OSPs liability. First, the article 104 imposes the duty along with penalty upon a so-called specific type of OSPs whose main purpose is distribution of works by transmission, to accommodate technological measures for interrupting illegal distribution of copyrighted materials. Second, the article 133-2 gives the administrative authority the power to shut down an account of a continuous infringer and even the whole bulletin board which OSP provided the infringer with. These two articles will arguably render our internet industry sterile rather than stop online copyright infringement.