저작권법상 친고죄 규정의 고찰

In the past, violations of copyright did not cause damage on a large enough scale to be perceived as violations of the copyright holder’s personal rights, and even the violators were not conscious to a high degree of the illegality of their actions. However, as the rate of internet usage grew rapidly in recent years the digital industry has grown to the extent that the importance and property value of digital contents are being widely emphasized, and the economic value has increased as well. The property damage from copyright violation has grown as correspondingly, and such violations have come to be perceived, beyond violations of personal rights, as crimes of pubic concern. Reflecting these changes, though the Copyright Act has made penalties for crimes of copyright violation offenses subject to personal complaint by the victim, there are now calls to make them offenses not subject to personal complaint. The basis for this argument is that recent violations of copyright, instead of being transitory violations by individuals, are organized and repetitive in nature, and the amount of damage is immense, requiring efficient enforcement and imposition of penalties. There are further demands that copyright violations not be subject to personal complaint following the conclusion of FTAs with the EU and the United States. The practice of a few law firms, charged with settlement from copyright holders, abusing criminal complaints to extract settlements from copyright violators who fear a criminal record, also gives weight to abolishing the subjectivity to complaint principle in the Copyright Act. In response, this paper discusses whether to maintain or abolish the offense subjective to complaint principle in the Copyright Act, then examines each penalty provision in the Act to determine whether or not to it should be an offense subject to personal complaint. As a precondition to resolving the problems discussed herein, we also review the reasons the Copyright Act established the offense subject to personal complaint principle in relation to the characteristics of copyright protection. Copyright works, beyond being a subject of the copyright holder’s personal rights, has a public aspect in forming and developing human culture through the public’s use of such works and the resulting changes in ideas and opinions and the creation of new works. Therefore, the principle of offense subject to personal complaint is appropriate so that criminal penalties only apply when the copyright holder brings a criminal complaint with the intent to have such penalties applied, and not otherwise. However, the act of repeatedly violating copyright for the purpose of profit constitutes the acquisition by a third party of the economic benefit that the copyright holder is entitled to, when this third party contributed nothing to the creation of the copyright work. The policy considerations of cultural development behind making copyright violations offenses subject to personal complaint have no application to this latter case. We therefore conclude that the amended Act is correct in penalizing repeated violations of copyright for the purpose of profit regardless of the copyright holder’s bringing a complaint.