공개 데이터 수집의 적법 기준에 대한 소고

Open data have long been recognized as common resources. However, recent domestic and international disputes show that even their collection through automated technologies may exceed the scope of current laws. Relevant laws include the CRIMINAL ACT, the ACT ON PROMOTION OF INFORMATION AND COMMUNICATIONS NETWORK UTILIZATION AND INFORMATION PROTECTION, the PERSONAL INFORMATION PROTECTION ACT, the COPYRIGHT LAW, the UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT, and the MONOPOLY REGULATION AND FAIR TRADE ACT. Among these, the most relevant are the Rights of Database Producers under the COPYRIGHT LAW (Article 93) and the prohibition on infringing another’s economic interests by unauthorized using the outcomes without permission under the UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT (Article 2(m)). Comparison of these provisions shows that the requirement of fair practice is a key factor in determining the legality of collecting open data. In this context, fair practice generally entails compliance with Terms of Use and Robot Exclusion Standard. Terms of Use may be legally construed as contractual terms, while the Robot Exclusion Standard can be construed as either contractual terms or the public notice. Conversely, prohibiting the collection of unique data may constitute an abuse of a dominant market position or unfair trade practices under the MONOPOLY REGULATION and FAIR TRADE ACT. Thus, the collection of unique data should be deemed as lawful. This study discusses the lawfulness of collecting open under the existing law; however, future discourse must also discuss the lawfulness of collecting new forms of open data outside the framework of the current law.