한미 FTA협정에 따른 저작권분야 정책방향 연구

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.