UCC 복제․전송의 중단 및 재개와 관련한 ‘소명’요건의 검토 - “손담비의 ‘미쳤어’사건”과 “렌즈사건”의 비교를 통하여 -

With the development of Internet and Web environment, the users have increasingly used contents in various ways. For example, Web 2.0 applications such as blogs,podcasts, wiki, or video sharing, enable users easily to create and share text, videos or pictures, and to play a more active and collaborative role in content creation and knowledge dissemination. From the viewpoint of copyright law, the use of the pre-existing works for the UCC is currently very controversial because it is very easy to infringe copyright. The Korean Copyright Act does not currently contain an exception which would allow the use of pre-existing copyright protected content for creating new or derivative works. Therefore, court tries to interpret the act as 'quotation'. In the light of the intent of legislation of the 'quotation' provision, it will be difficult to extend the scope of its interpretation unlimitedly. Accordingly, it is desirable to introduce 'fair use' doctrine as a general provision that will be able to become a flexible criteria for the interpretation of UCC. However, if fair use doctrine is introduced only for the purpose of the defense at court, not for the purpose of request of resumption of the reproduction and interactive transmission of UCC to the OSP, the meaning of its introduction will be decreased. In this regard, the 'Sondambi' case is very suggestive. The Appellate court made an efforts to rule reasonably the case without tying up to the literary interpretation. However, it would be much more economic and efficient that users can request the resumption to the OSP directly without going to the court, like in the USA. On the consideration of this, this article suggests the amendment of Korean Copyright Act in order to adopt 'counter-notification' provision of DMCA which a user can request the resumption to the OSP directly if the user's act is fair use.