인터넷 링크행위자는 이제 정범은 물론 방조범조차 아닌 것인가? -대법원 2012도13748 판결의 문제점과저작권 형사범죄 처벌의 논리-

In the copyright area of South Korea where many right holders often give up time and cost consuming litigations as an effect of extreme vulnerability to infringement, so far there is no en banc decision by Korean Supreme Court. Considering the purpose of this academic seminar to deal with an en banc decision itself or any related case by Korean Supreme Court, I inevitably analyzed the recent case, the position of which should be changed by a future en banc decision. It is the Korean Supreme Court panel’s decision 2012do13748 decided on Mar. 12, 2015 which ruled that aiding and abetting liability could not be imposed though the criminal defendant made a link to copyright infringing materials. By clarifying that any linking activity cannot fall on aiding and abetting or indirect infringement, this decision goes one step forward from the standpoint of existing precedents which ruled a linking is hard to be a direct infringement such as reproduction or transmission itself under the Korean copyright law. However, such a conclusion is colliding with the positive stance of the Korean Supreme Court in “Pantie Newspaper” case recognizing that a linking to porn is equal to displaying the porn and is not fitting at all with the Article 102 of the Korean Copyright Act providing the limitation of liability for online service provider, which provision is clearly based on that the service provider could be liable for its linking service under the aiding and abetting theory. Also, the conclusion is problematic because, from the perspective of policy, it is likely to unduly encourage copyright infringement rather than to uplift the freedom of the Internet and it is not matching with the other countries’ attitudes which commonly admit the possibility to impose at least the indirect or secondary liability on a linking activity. So, it shall be modified well by a future en banc decision by the Supreme Court. In addition, it should be kept in mind that Korean Courts have committed logical mistakes in many cases including this 2012do13748 decision, partly because the specific characteristic of copyright law makes it too hard and too effort-consuming to accurately analyze the combination of complex copyright divided into as many as ten individual sub-rights and much more complex fair use provisions. All copyright stakeholders should devote much more effort to address the complement of copyright legal system related to respond effectively to the infringement rather than to concentrate the above effort-consuming analysis. It is likely to be a clear shortcut by which we can expect various court cases including en banc cases in Korean copyright area. Besides, as this article shows the example by relying on Korean criminal law in trying to find an appropriate solution for the criminal case of copyright infringement, the much more important thing is to harmonize and cooperate with impeccable logic that is already taken in the adjacent laws which is also a part of the overall Korean Law, not to analyze the related trend of foreign intellectual property laws.