선한 사마리아인의 역설과 그 극복 - 온라인서비스제공자의 저작권 침해에 관한 인식과 모니터링 의무를 중심으로

With safe harbor provision of Copyright Act, Online Service Provider (OSP) may be exempt from secondary liability with respect to copyright infringement of users, if the statutory requirements are met. Korean Copyright Act recognizes mere conduit, caching, hosting service, and location tool as the types of OSP. This study focuses certain undesirable outcome in that OSP may be further liable to the copyright infringement of users when OSP makes efforts to prevent copyright infringement in its service because OSP may be more knowledgeable through such investigation. This situation is a kind of a “Good Samaritan Paradox” because the acts in good faith leads to more liability. The terms of ‘actual knowledge’ and ‘apparent knowledge’ are confusingly used in the safe harbor provisions in Korean Copyright Law. In this regard, the Supreme Court did not find the liability of OSP unless such OSP were given notice from right holders with specific URLs (Supreme Court 2016Da271608 rendered on Feb. 28, 2019). Furthermore, Article 102 Paragraph 3 of Copyright Act declares no general obligation of OSP’s monitoring, but this provision is misleading to the effect that OSPs may believe that there is absolutely no obligation to monitor its service in any cases at all. This leads to OSP’s blindness to the circumstances of copyright infringement with the exception of right holder’s notice with specific URLs. Compared to the laws of foreign countries, the interpretation and provisions itself of safe harbor protection in Korean Copyright Act leave much to be desired.