소셜미디어의 적극적 실현을 위한 헌법적 연구

Smart phone fever, initiated by iPhone, has brought a drastic change of use of contents in cyber space. Smart phone fever provides Web 2.0 paradigm that can be defined as participation/openness/sharing, and introduces social network service(SNS). SNS changes cultural and social stereotype of the netizen's role. Now they are not only consumers but also reproducers of social and cultural contents. New concept of media appears which reinforces the notion of production and sharing of contents in SNS network, which is called as social media. The characteristics of social media and its function of contents producing and sharing, as contrasted with those of traditional media such as newspaper, broadcasting and CATV, have received wide public attention. Social media, associated with web 2.0 paradigm, is growing to the realm of marketing beyond cultural interest, and is developing as a new industry. Since contents consumers are reproducing the contents simultaneously in social media, the social media is now functioning as a new contents distributor. Netizens, who were merely contents consumers in the cyber space, have become contents producers in social media. Existing theories overlook the netizen's role as a contents producing agent. If netizens would be continuously regarded only as consumers, it would be a narrow viewpoint that cannot solve the problem in the era of social media. Access rights have always raised problems in cyber space and traditional media. The problem includes whether the contents are freely accessible and what level they can be reproduced. Legal discussions have been made regarding the balance of author's right of creation and the netizen's right of free use. Since cyber space has an open structure different from traditional media, the protection of author's right is not easy. This approach has caused cyber space to change from an open structure to a controlled one. SNS is a cultural space changing in real time which is fundamentally different from the past internet in time and space. Therefore, regulated system would distort the intrinsic characteristics of SNS. Regulation can not stop the real-time openness of SNS no matter how strong the regulation is. Every effort regulating the SNS would be ineffective one rushing around belatedly. Constitution must work as a social norm. It should be existing and evolving in everyday life rather than an idealistic norm. SNS social media is moving faster than regulation and is making new social phenomena and culture. Now is the time to understand the real meaning of social media. Regulation based on the right understanding will do its role effectively realizing and developing in the real life. In this paper, it is examined how to harmonize the rights of copyright proprietors and users, who are consuming and reproducing simultaneously, in the SNS social media of communication revolution. Firstly, studies on the access rights and fair use of copyrighted materials is made. And the characteristics of social media and the status of content use in the social media are analyzed. Further, it is examined whether the existing access rights and fair use theory are still valid in the context of new social media. Social media can be an open structure or a controlled structure depending on how the cyber space is regulated. It is doubtful that existing standard can be effective norms in the social media considering the characteristics of social media that opens time and space simultaneously in network. The current user of contents in social media is no more the one who uses old media. Now the user is doing a dual role of distribution and reproduction of the contents in the network. Accordingly, the current regulation reinforcing the copyright is not a right direction in the era of SNS social media, and is not able to set the open structure back to a controlled one. It is urgent to prepare a new copyright regulation system in a timely manner through an accurate analysis of social media. As a cultural phenomenon, the problem of the cultural weak in social network is one of practice. If social network is a main stream of the day, and makes our social relationship new, we can state that it is a primary cultural phenomenon so it is not desirable, if there are the weak excluded from the cultural stream. Therefore, the request for national concern and action in the cultural forming process are made and the careful consideration of the policy should be given to resolving the gap between the strong and the weak in social-cultural change. The problem is, however, that the unilateral consideration on rights guaranteed by a nation is not enough of the weak in social network. It is because that the people in societies are already producers of information and culture, not consumers of them in the past. The state government should focus upon “whom its policy concerns” in information and culture of social network society, not “what it makes” as a provider which shapes culture. It is very important that culture in social network society is not a way of life, so we should understand culture is practice of constitutional ideal through social network. The state government should not lead its culture to an uniform and one-sided direction, not concerning the position and individuality of the cultural weak for the purpose to realize the ideal of cultural nation. This is the limit in the principle of cultural nation. It is hopeful that a true will of the principle of cultural nation should be realized not to make a contradiction that the cultural weak grow tremendously in social network for openness, sharing, and communication.