링크행위의 저작권 침해여부 판단에 관한 고찰

• 영문명: A Study on the Copyright Infringement in Linking Activities: Focusing on the 2017Da19025 judgment of the Supreme Court on September 9, 2021
• 발행기관: 충북대학교 법학연구소
• 저자명: 전세준(sejoon Jeon) 윤종민(chongmin Yoon)
• 간행물 정보: 『과학기술과 법』제15권 제1호, 203~230쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.06.30

국문 초록

Due to the advancement of technology, the scope and speed of copyright infringement has reached a very high and widespread level, and the methods of infringement are also diverse. In the past, the Supreme Court ruled that the nature of the linking act was only to share location information on the Internet, and that the act of sharing location information could not be considered an infringement of copyright such as the right of public transmission or reproduction held by the copyright holder in any case, resulting in widespread distribution of works through links without the consent of the copyright holder. However, unlike previous precedents, the subject judgment set forth a new standard for recognizing liability for aiding and abetting copyright violations for linking acts, which is that the linking actor must be fully aware of the fact that the perpetrator infringes the public transmission right, and the linking actor must have engaged in linking acts to the extent that members of the public can easily access the infringing postings at a time and place of their own choosing, such as by commercially and continuously posting links to such infringing postings on an Internet site. The court concluded that if the above criteria are met, it can be said that the aider and abettor of copyright infringement can be established as it can be said that the aider and abettor of infringement of the right of publicity can be established as it can be said that the aider and abettor of infringement of the right of publicity has facilitated the crime of the principal offender in making the infringing postings available to the public. However, the subject judgment is unreasonable in that it overly expands the causal relationship between aiding and abetting and may cause confusion to the legal stability and predictability under the principle of criminal law. The majority opinion is also unjustified in that it seems to recognize aiding and abetting not only as an act that facilitates or enhances the execution of an act, but also as an act that informs people of the realization of the criminal act by the perpetrator of the result. Finally, in the case at hand, in consideration of the need for realistic punishment, the subject judgment proposed a requirement to punish linking acts, which, in addition to the general requirement of establishing an accessory to the crime, proposed the act of ‘commercial and continuous linking acts’. However, as previous precedents have held that the act of linking is merely an instruction to request the transmission of a work, an act of preparation for the request, or a conduit to the work, it seems contrary to the legal stability and predictability of the principle of criminal jurisprudence to determine the punishment based on whether the person knew the risk of the act and whether the linking was commercial and continuous. In addition, even though the Supreme Court has already ruled that linking behavior is not illegal through previous precedents in matters that have not been legislated, the new requirement that linking behavior is illegal, citing the need for realistic punishment, seems to amount to effective retroactive punishment as mentioned above. While we agree that there is a need for practical penalties for linking behavior, it is preferable for legal stability to resolve the grounds for penalties through legislation rather than through interpretation or judgment by the Supreme Court. As for the legislative direction, it is proposed to add punishable acts to Article 136 of the Copyright Act and stipulate the following types of linking acts as punishable acts: “providing programs that facilitate the use of infringing works, etc., websites that are recognized to be used for the use of infringing works by the public, and linking acts that are recognized to intentionally lead the public to infringing works.

목차

Ⅰ. 서론

Ⅱ. 사건의 개요 및 대상판결의 내용

Ⅲ. 링크행위의 저작권 침해 문제에 관한 법률 규정과 법원의 판단

Ⅳ. 링크행위의 저작권 침해 여부에 관한 비교법적 고찰

Ⅴ. 대상판결의 판단에 대한 비판적 검토

Ⅵ. 결론

키워드

링크 전송권 방조 공중송신 온라인서비스제공자 link transmission rights aiding and abetting public transmission online service providers