디지털콘텐츠 이용계약의 법적 성질과 권리ㆍ의무에 관한 고찰

The growth of the Internet over the decade has brought profound changes to the Internet related laws. More and more people use Internet as a communication tool and consequently, Internet acquired the power of influence. There is no question that the information, such as ‘contents’, ‘data’, and ‘computer software’ et al. can have considerable value. The fact that the economic reward for this information has significant consequences in newly emerging digital business should be reflected on private law. The term ‘thing’ covers any substantive tangible object(§ 98 Korean Civil Code), i.e., both movables and immovables. In terms of private law, rights with regard to immaterial objects are excluded from the Civil Code. In the light of the existing legal framework, the digital property is hard to be protected within the realm of the Civil Code and its practice which based on the traditional legal concept of thing, for the protection of this digital property, this article suggested three methods which are a novel interpretation over the thing and two ways for legislation. The latter is that independent legislation for sui generis protection or the amendment of § 98 Korean Civil Code is considering. A digital contents license agreement is not included in the typical contract ruled by the Korean civil law or commercial law. This treatise deals with legal relation between the digital contents licensor and the consumer mainly. In this treatise I would like to advance a theory to regulate legal problems rationally arising from digital contents license agreements. This treatise deals with the legal nature of a digital contents license agreement, the formation of the digital contents license agreement and the legal relation between the digital contents licensor and the comsumer after one makes a contract with the other. But licensing the digital contents has brought about new serious troubles, being caused from the fundamental characteristics of digital contents license contracts. At the same time, it has also increased the necessity of protecting consumers in digital contents transactions. There are also unique problems, which are caused from the conflict between copyright act and license contract, like making copyright act invalid through a license agreement or imposing the restriction on user’s right which copyright act gives them. And there are consumer protection problems like warranty or self-help provisions on click-on or shrink-wrap license, which digital contents providers offer unilaterally. But the law and regulation for protecting digital contents in Korea are oriented to tangible things, so it makes serious troubles to regulate digital contents as intangible things. In the near future, we need to amend the civil law or make a new law relating to digital contents transactions, because the present law and regulation for protecting digital contents in Korea are just oriented to tangible things and cannot protect the digital contents as intangible things effectively.