기술적 보호조치의 구분과 저작물 이용과의 관계에 관한 고찰 ―노래방 기술적 보호조치 무력화 장치 제조·판매 사건―

Under the Korea’s Copyright Act, it is prohibited to circumvent technological protection measures which controls access to copyrighted works. This anti-circumvention rule originates from the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. This provision on access control, however, was legislated following the KORUS FTA which provides that any person who circumvents any effective technological measure that controls access to a protected work shall be liable and subject to the remedies. TPMs may be divided into tow categories: access control & rights control. In 2015, the Korean Supreme Court held that whether a particular TPM is access control or rights control is decided depending upon each copyright protected under the Copyright Act. The Court thus held that the TPM in question is rights control in public performance right while it is access control in reproduction and distribution right. This paper argues that the decision is erroneous because TPM has nothing to do with the exploitation of works such as reproduction, distribution or public performance. Whether or not reproduction, distribution or public performance right is infringed, it is violation of the circumvention rule if the user circumvents, bypasses, disables, deactivates, impairs, removes, or avoid the TPM. Therefore, this paper strongly argues that the Supreme Court’s holding shall be changed soon.