웹하드서비스제공자의 면책요건 -표준적인 기술조치를 중심으로- (Requirements of Limitation on the Liability of WebStorage Service Providers -Focusing on standard technical measures-)

서지정보

· 발행기관 : 한국지식재산학회
· 수록지 정보 : 산업재산권 / 41호 / 295 ~ 336페이지
· 저자명 : 김경숙

초록

Before the amendment of Copyright Act in 2011, the liability of web storage service providers could be reduced or waived in those cases where such service providers prevented or stopped reproduction and transmission thereof when made aware that copyrights would be infringed upon due to the reproduction and interactive transmission of works by the other persons.
However, the amendment of 2011 categorized online service providers into four types and also introduced new requirements for exemption. If online service providers are exempted from liability, they shall adopt a repeat infringer policy, accommodate standard technical measure, and not receive direct financial benefit attributable to infringing activity. The web storage service providers shall also meet such requirements in order for its liability to be waived.
The provision of standard technical measures is to introduce the DMCA §512(i)(2) for the implementation of the KORUS FTA. Accordingly, the concept of a standard technical measures may be deduced from the examination of the standard technical measures under DMCA. However, the DMCA does not provide "technical measures" obligation of Article 104 of Korean Copyright Act, instead has been regulated online service providers with only the standard technical measures. With the introduction of "standard technical measures", it needs to be examined that the existing obligation of the technical measures is not necessary any more in the Korean Copyright Act. The legislative intent of congress and the case law show that "standard technical measures" and "technological protection measures" are not different concepts in the DMCA. The Korean Copyright Act also provides not only technological protection measures but also the prohibition of circumvention of the measures, which implies the two measures may have any conflict each other.
This paper will examine whether Article 104 regarding the technical measure obligation might exist through the review of standard technical measures of the Korean Copyright Act and the DMCA.

영어초록

Before the amendment of Copyright Act in 2011, the liability of web storage service providers could be reduced or waived in those cases where such service providers prevented or stopped reproduction and transmission thereof when made aware that copyrights would be infringed upon due to the reproduction and interactive transmission of works by the other persons.
However, the amendment of 2011 categorized online service providers into four types and also introduced new requirements for exemption. If online service providers are exempted from liability, they shall adopt a repeat infringer policy, accommodate standard technical measure, and not receive direct financial benefit attributable to infringing activity. The web storage service providers shall also meet such requirements in order for its liability to be waived.
The provision of standard technical measures is to introduce the DMCA §512(i)(2) for the implementation of the KORUS FTA. Accordingly, the concept of a standard technical measures may be deduced from the examination of the standard technical measures under DMCA. However, the DMCA does not provide "technical measures" obligation of Article 104 of Korean Copyright Act, instead has been regulated online service providers with only the standard technical measures. With the introduction of "standard technical measures", it needs to be examined that the existing obligation of the technical measures is not necessary any more in the Korean Copyright Act. The legislative intent of congress and the case law show that "standard technical measures" and "technological protection measures" are not different concepts in the DMCA. The Korean Copyright Act also provides not only technological protection measures but also the prohibition of circumvention of the measures, which implies the two measures may have any conflict each other.
This paper will examine whether Article 104 regarding the technical measure obligation might exist through the review of standard technical measures of the Korean Copyright Act and the DMCA.

참고자료

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