일본에서의 저작권 간접침해행위의 규제 - 판례·학설 및 입법적 동향을 중심으로 -

Abstract

In the research field of the copyright, great attention has been shown to the question, not only the behavior which infringes copyrighted materials directly without authorization but also the liability of the particular group providing the consistent expedient of the copyright's direct infringement and leading to the copyright's infringement. Especially, the OSP's liability which is a sort of copyright's indirect infringement calls attention to the central problem in Korea. As to the OSP's liability, our case law states the views that the Clause 760, Article 3 of the Korean civil law is at the basis of the written law in respect of the OSP's liability. On this wise, the theory is of the same opinion with these case law to construct the joint tort for the abetment and backing theory. Nevertheless, in Japan having similarities of the legislative system toward copyrights with Korea, a variety of the legal principles is used as the solution of copyright’s indirect infringement via the case law. Above all, the Karaoke theory is a good example of this solution. This principle of law expands the central using body of copyrighted materials and requires to the 'control' and 'benefits' conditions. If this principle of law expands consecutively and fulfils the necessary conditions for the 'control' and 'benefits', despite the fact that infringed copyrights directly, this is used in the legal principles deeming a copyright's infringement. In addition, the legal principles of aiding and abetting are universally applicable as the legal theory of solution into the copyright’s indirect infringement. Particularly in the areas of the civil case, although an illegal act by abetting generally does not presume the injunctive relief, the copyright’s indirect infringement is presumed the injunctive relief according to the legal principles of abetting in nature. However it is criticized continually because the legal principles of the case law can not make sure of the legal stability and predictability. For this reason, the legislative reviews implements unceasingly to secure the legal stability and predictability about the copyright’s indirect infringement in Japan. In this respect, the legal principles of abetting to be commonly accepted have much to contend with the uncertainty of the obligation scope among the indirect pirates in Korea. Proceeding from what has been said above, the Japan's attempt to find the solution legislatively has great implications for us. I am convinced to reckon that it is a just time when we make greater discussions and legislative efforts of regulating the copyright’s indirect infringement to assure the legal stability and predictability within the copyright law.