저작권법상 온라인서비스제공자(OSP) 면책조항의 실효성에 관한 비판적 검토

On May, 27, 2003, Amendment to Copyright Law was approved that escape clause of Online Service Provider has been newly adopted. Amendment to copyright law submitted by the government and proposed by both Nam, Gung-Suk, and Shin Ki-Nam, the members of national assembly, was referred to the first committee of ministry of culture and tourism in the 228th National Assembly. They were sent to the Bill Examination Subcommittee after being reviewed by the panel and gone over the substitute debating. These three bills had not been submitted to the plenary session. Instead, alternatives were agreed to be suggested by the Bill Examination Subcommittee. These alternatives were sanctioned by the committee of ministry of culture and tourism in the 236th National Assembly on February, 24, 2003. The committee of culture and tourism explained the reasons for proposing the alternatives in the bill whose measures are designed to ensure the establishing basic institutional grounds for online service provider to run business activity in a safer environment. The first reason is that there have been growing needs to protect the investment efforts on making Databases and Digital Contents whose demand has been increased with the advancement of Knowledge and Information society. Secondly it is necessary to reinforce the protection of copyright in the digital net work environment in many ways like tightening the control of technological protection measure which is to secure the exclusive right of author from illegal reproduction and preventing the infringement of accessing to right management information of the works of author and setting up the legal system for online service provider possible to be exempted from obligation if OSP fulfills the required conditions when author's copyright is infringed through internet by the third person. These purposes and concerns appear in and inspire Article 77 of copyright law effective from July, 1, 2003. Article 77 has been enacted to govern to build better circumstance for OSP to run business more safely in today's information oriented society by adopting the escape Clause, by which the responsibility can be lessoned and exempted if Online Service Provider stops to copy and transmit after finding out that he or she is infringing the rights of authors by the third person while providing the services of reproducing and transmitting the works, performance, phonogram, broadcasting and data base. In meanwhile, there lies a problem in accepting thoughtlessly this legislation methods without researching on whether escape clause properly contribute to playing the role of fostering better circumstances in which OSP and Information&Telecommunication Service Provider can maintain their business in a more stable situation by strengthening the protection of copyright law and blocking the circulation of illegal informations. In particular, The issue of obligation ex delicto can not be simply solved in an uniformed manner by written laws and regulations. Ultimately the extent of liability and possibilities of exemption should be dealt and reached on through the trial. Briefly, the liability of OSP and ISP can not be exempted right away just by newly adopting an article, escape clause. On the basis of these concerns shown as above, research was scrutinized on this these about written documents dealing with the pros and cons toward adopting the escape clause for OSP and the streams of related cases of other countries and the current escape clause provided in copyright law. And then critical reviews and propositions of effectiveness of escape clause of OSP are made with analysing the subsequential trends of cases after the newly approving escape clause on this these.