디지털 저작물의 이용과 일시적 복제- 대법원 2017. 11. 23. 선고 2015다1017(본소) 등 판결에 대한 검토 -

「Supreme Court Decision 2015Da1017, Decided November 23, 2017」 is the initial case that promulgates Supreme Court’s view on “temporary reproduction” issues of copyrighted digital works. Though said decision provides meaningful guidelines to interpret Art. 35-2 of Copyright Act, it also leaves some arguability in theoretical and political aspects. It is inappropriate to regard the temporary reproduction is automatically indulgenced in copyright law and only the ‘breach of contract’ matters while the main use of work is of non-infringement. Rather, copyright holder shall be allowed to allege distinct infringement claim against the temporary reproduction where it harms independent economic interest of her. The harms of independent economic interest can be recognized where temporary reproduction is directly conducted without permission of the right holder as well as where it stems from gross breach of contract. The regulations and practices in Europe, Germany and the U.S. are analogous with this logic. Said decision projects a shadow on digital copyright holders by excessively limiting the capability to exercise reproduction right. Initially, it is necessary to avoid the drawback of said precedent by apposite interpretation of Art. 35-2 in individual case. In the long run, it is desirable to amend the proviso of Art. 35-2 from “where the copyright is infringed” to “where the right is infringed” or “where the independent economic interest of right holder is harmed”.