한미 FTA협정에 따른 저작권분야 정책방향 연구 (A Study of a Wise Way for Copyright Policy in Korea after KORUS FTA)

서지정보

· 발행기관 : 경희대학교 법학연구소
· 수록지 정보 : 경희법학 / 43권 / 2호 / 67 ~ 103페이지
· 저자명 : 정진섭

초록

The US-Korea Free Trade Agreement (also known as KORUS FTA) is a trade
agreement between the United States and the Republic of Korea. Negotiations were
announced on February 2, 2006 and were concluded on April 1, 2007. The
successful completion of the agreement was announced on June 30, 2007.
As a result of the KORUS FTA, the scope of protection of copyright will be
expanded to include the protection of temporary storage, additional 70 years of
protection, etc. Also, the protection mechanism for an owner of copyright will be
greatly enhanced so as to abolish the provision of victims' complaint and allow the
prosecution by the direct investigation power with respect to the copyright
infringement. Such protection policy of copyright will start if the agreement proposal
is ratified and a revised bill of the Copyright Act is soon passed in the parliament.
First of all, I insist that the spirit of our constitution should be considered in the
discussion of the copyright problem. Article 22, Paragraph 2 of our constitution
regulating the academic and artistic freedom provides that the rights of an author, an
inventor, a scientist and an artist shall be protected by laws. Also, the preamble of
our constitution declares the idea of a cultural race, and Article 9 of the constitution
imposes an obligation to the succession and development of traditional culture and
promotes national culture of our nation to realize the cultural idea of our race. The
government has an obligation to develop culture by protecting authors according to
such spirit of the constitution.
The Copyright law is one of the most important legal systems in the Information
Age. The policy of emphasizing the protection of copyright is an indispensable
measure due to the trend that the information and culture are developed through the
Internet simultaneously throughout the world. On the other hand, when looking into the Internet culture of today, open culture through creation and sharing like Web 2.0
is spreading day by day. As the Internet becomes a part of our lives, numerous
literary works float through the cyber space and are recreated (remixed) in various
forms, thus making the scope or limitation of the protection of the copyright vague.
The problem is that the Internet has not been created originally on the premise of
permission. In order to obtain permission for the usage of a literary work, one
should contact the author which needs considerable time and cost. Also in many
cases, even though they want his/her work to be used by many people, the authors
are worried giving unlimited permission of the copy. In such circumstances of legal
conflicts, one is likely to violate the Copyright Act more often than the traffic
regulations.
Therefore, I will briefly present my opinion regarding the optimal balance between
the protection of copyright and the guarantee of users benefit after the KORUS FTA
ratification.
The problem of illegal copying is most serious in the Internet society, especially in
the field of the movie and music industry sector. The main principle of protecting an
owner of copyright is mostly secured in the Internet. However, there is still a
tendency of tolerating the illegal copy to a certain degree in actual life of using the
Internet, and thus there are frequent cases where authors take legal procedures against
a horde of users who made illegal downloads.
If the tendency of not paying a price is established, there will be hardly any
commercial success in a field in which a large amount of personnel and capital are
required, such as the movie industry. If there is no commercial success, the entire
business will be depressed and the creative activities of literary works will be
deteriorated as a result. Therefore, the government-wide cooperation is necessary for
the industrial development and activated utilization of the copyright. Therefore, a
consensus is made on the fact that the copyright infringement without permission
should be subject to strict legal procedures.
However, it is worried that there will be congestion of criminal penalties and civil
suits relating to the reinforcement of the responsibility of on-line service providers
and the execution of the copyright, Our parliament already took legislative measures
to make a revision of abolishing the provision of a victims' complaint in the laws
relating to the habitual infringement of copyright for a commercial purpose at the end of 2006, during the negotiation of KORUS FTA. Such measures can be
understood in the respect that there has been necessity for accepting the requirements
of the U.S. with respect to a sensitive point at issue in advance. However, a person
in authority should bear in mind that this is a problem relating to the judicial
sovereignty of a nation, and there are considerable civil and emotional resistance
resulting from the reinforcement of criminal penalties.
It runs counter to the advanced way of settling disputes to depend on the criminal
penalty against the infringement of private rights notwithstanding that it is desirable
to find a civil solution for the infringement of private rights. That is, the criminal
redeeming procedures should be provided complementally only in a case where the
civil solution method is lacking and is efficient to let a victim redeem his rights
through private dispute settling procedures relating to the personal property benefit of
an individual. Also, study is required to be made on a reasonable standard for
practical decision to prevent punishment and congestion of criminal proceedings
contrary to the intention of a rightful person.
Of course, according to the KORUS FTA, a statutory damage system is introduced
and a provision of an obligation to disclose information of infringement in a trial
process is newly established as a way to reduce the burden of proof so that the civil
redeeming system may be complemented to a certain degree. Therefore, I suggest that
it will be more desirable for the copyright management groups to first utilize such
civil redeeming procedures firstly rather than practice the criminal redeeming
procedures where there are a great deal of civil resistance.
The user of the copyright should have respect for the copyright holder. But since it
is also related to a general sympathy or civil current, the government and
organizations of the copyright have to consider the method of educating people and
make the system last a longer period.
After the KORUS FTA agenda, the government may strengthen the policy for
Copyright protection. It is reasonable for enhancing the copyright protection system in
Korea as needed of U.S. who is the biggest trade partner. Due to the aim of the
Korean government focusing on the intangible intellectuality as a fountain of
competitiveness of Korea, it also has a strong purpose that intends to protect the
Copyright in our society.
Now let's consider the practicable attitude of the US as to the use of Copyright Matters. In the nations that adopted the Civil law like France or Germany, moral
rights are important in the view of protecting the copyright holders' right. Meanwhile,
the U.S. developed the fair use in the view of equity between the copyright holders
and its users.
Now we have to supplement the practicable attitude rather than the moral attitude
in the application of the Copyright law. I offer an opinion that will be more
desirable to supplement the restrictive legislation attitude regarding the use of
copyright at the next revision of the Copyright law, introducing the inclusive
allowance Article of "Fair use" as Article 107 of the U.S. Copyright law.

영어초록

The US-Korea Free Trade Agreement (also known as KORUS FTA) is a trade
agreement between the United States and the Republic of Korea. Negotiations were
announced on February 2, 2006 and were concluded on April 1, 2007. The
successful completion of the agreement was announced on June 30, 2007.
As a result of the KORUS FTA, the scope of protection of copyright will be
expanded to include the protection of temporary storage, additional 70 years of
protection, etc. Also, the protection mechanism for an owner of copyright will be
greatly enhanced so as to abolish the provision of victims' complaint and allow the
prosecution by the direct investigation power with respect to the copyright
infringement. Such protection policy of copyright will start if the agreement proposal
is ratified and a revised bill of the Copyright Act is soon passed in the parliament.
First of all, I insist that the spirit of our constitution should be considered in the
discussion of the copyright problem. Article 22, Paragraph 2 of our constitution
regulating the academic and artistic freedom provides that the rights of an author, an
inventor, a scientist and an artist shall be protected by laws. Also, the preamble of
our constitution declares the idea of a cultural race, and Article 9 of the constitution
imposes an obligation to the succession and development of traditional culture and
promotes national culture of our nation to realize the cultural idea of our race. The
government has an obligation to develop culture by protecting authors according to
such spirit of the constitution.
The Copyright law is one of the most important legal systems in the Information
Age. The policy of emphasizing the protection of copyright is an indispensable
measure due to the trend that the information and culture are developed through the
Internet simultaneously throughout the world. On the other hand, when looking into the Internet culture of today, open culture through creation and sharing like Web 2.0
is spreading day by day. As the Internet becomes a part of our lives, numerous
literary works float through the cyber space and are recreated (remixed) in various
forms, thus making the scope or limitation of the protection of the copyright vague.
The problem is that the Internet has not been created originally on the premise of
permission. In order to obtain permission for the usage of a literary work, one
should contact the author which needs considerable time and cost. Also in many
cases, even though they want his/her work to be used by many people, the authors
are worried giving unlimited permission of the copy. In such circumstances of legal
conflicts, one is likely to violate the Copyright Act more often than the traffic
regulations.
Therefore, I will briefly present my opinion regarding the optimal balance between
the protection of copyright and the guarantee of users benefit after the KORUS FTA
ratification.
The problem of illegal copying is most serious in the Internet society, especially in
the field of the movie and music industry sector. The main principle of protecting an
owner of copyright is mostly secured in the Internet. However, there is still a
tendency of tolerating the illegal copy to a certain degree in actual life of using the
Internet, and thus there are frequent cases where authors take legal procedures against
a horde of users who made illegal downloads.
If the tendency of not paying a price is established, there will be hardly any
commercial success in a field in which a large amount of personnel and capital are
required, such as the movie industry. If there is no commercial success, the entire
business will be depressed and the creative activities of literary works will be
deteriorated as a result. Therefore, the government-wide cooperation is necessary for
the industrial development and activated utilization of the copyright. Therefore, a
consensus is made on the fact that the copyright infringement without permission
should be subject to strict legal procedures.
However, it is worried that there will be congestion of criminal penalties and civil
suits relating to the reinforcement of the responsibility of on-line service providers
and the execution of the copyright, Our parliament already took legislative measures
to make a revision of abolishing the provision of a victims' complaint in the laws
relating to the habitual infringement of copyright for a commercial purpose at the end of 2006, during the negotiation of KORUS FTA. Such measures can be
understood in the respect that there has been necessity for accepting the requirements
of the U.S. with respect to a sensitive point at issue in advance. However, a person
in authority should bear in mind that this is a problem relating to the judicial
sovereignty of a nation, and there are considerable civil and emotional resistance
resulting from the reinforcement of criminal penalties.
It runs counter to the advanced way of settling disputes to depend on the criminal
penalty against the infringement of private rights notwithstanding that it is desirable
to find a civil solution for the infringement of private rights. That is, the criminal
redeeming procedures should be provided complementally only in a case where the
civil solution method is lacking and is efficient to let a victim redeem his rights
through private dispute settling procedures relating to the personal property benefit of
an individual. Also, study is required to be made on a reasonable standard for
practical decision to prevent punishment and congestion of criminal proceedings
contrary to the intention of a rightful person.
Of course, according to the KORUS FTA, a statutory damage system is introduced
and a provision of an obligation to disclose information of infringement in a trial
process is newly established as a way to reduce the burden of proof so that the civil
redeeming system may be complemented to a certain degree. Therefore, I suggest that
it will be more desirable for the copyright management groups to first utilize such
civil redeeming procedures firstly rather than practice the criminal redeeming
procedures where there are a great deal of civil resistance.
The user of the copyright should have respect for the copyright holder. But since it
is also related to a general sympathy or civil current, the government and
organizations of the copyright have to consider the method of educating people and
make the system last a longer period.
After the KORUS FTA agenda, the government may strengthen the policy for
Copyright protection. It is reasonable for enhancing the copyright protection system in
Korea as needed of U.S. who is the biggest trade partner. Due to the aim of the
Korean government focusing on the intangible intellectuality as a fountain of
competitiveness of Korea, it also has a strong purpose that intends to protect the
Copyright in our society.
Now let's consider the practicable attitude of the US as to the use of Copyright Matters. In the nations that adopted the Civil law like France or Germany, moral
rights are important in the view of protecting the copyright holders' right. Meanwhile,
the U.S. developed the fair use in the view of equity between the copyright holders
and its users.
Now we have to supplement the practicable attitude rather than the moral attitude
in the application of the Copyright law. I offer an opinion that will be more
desirable to supplement the restrictive legislation attitude regarding the use of
copyright at the next revision of the Copyright law, introducing the inclusive
allowance Article of "Fair use" as Article 107 of the U.S. Copyright law.

참고자료

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