인터넷조약상 공중이용제공권의 수용에 관한 연구

Under the Internet Treaties (the WCT and the WPPT), the right of making available to the public (hereinafter, “the Right”) covers the interactive on-demand transmission of works and objects of related rights (i.e., performances fixed in phonograms and phonograms) in the digital network environment. While the WCT locates the Right under the category of the right of communication to the public, the WPPT provides the Right as a standalone right. This is the result of accepting the proposal of the European Community that played a leading role in drafting the Internet Treaties. The so-called “umbrella solution” adopted by the WIPO Diplomatic Conference for the Internet Treaties, however, allows contracting parties to legally characterize the Right with relative freedom. For example, although the Right in the InfoSoc Directive of the European Union is provided in a very similar way to that of the Internet Treaties, in the United States, the Right is subsumed under different existing rights: transmission of copyrighted works to the public in the form of digital downloads is regulated by the right of distribution; streaming of copyrighted content is covered by the right of public performance; uploading of a copyrighted image for display to the public online is handled by the right of public display. Further examples of the diversity in the implementation of the Internet Treaties can be found in the case of Northeast Asia: the Right is called Xìnxī wǎngluò chuánbōquán (right of communication through information network) in China; Jidō kōshū sōshin-ken (right of automatic public transmission) as a subordinate right of Kōshū sōshin-ken (right of public transmission) in Japan; and jeonsong-gwon (right of interactive transmission) as a subordinate right of gongjoong songsin-gwon (right of public transmission) in Korea. China, Japan, and Korea have taken different approaches in adopting the Right, although they all created virtually the same right.