저작권법에 의한 기술조치 보호의 범위에 관한 연구

Abstract

The legal protection of technological measures is indispensable in the digital era when copyright infringements often happen on large scale. But, considering the numerous problems that their excessive protection can cause, we must make efforts to find the most balanced level of the protection. This is also true of the issue specifying the scope of the protection. The most significant issue concerning this theme has been whether to protect the 'access controls' which mean the measures to control the access to the copyrighted works, in addition to the 'rights controls' which mean the measures to directly protect the rights of copyright owners. The previous general views have regarded it as a fundamental difference related to this issue between Copyright Act(CA) of Korea and Digital Millenium Copyright Act(DMCA) of USA that Korea's CA does not cover access controls in the scope of technological measures protected, while DMCA does. But the recent cases of both countries show the possibility that actually the difference does not exist. In a notable case dealing an issue of whether to see 'access code' used in Sony's PS2 game console to make unauthorized copy unplayable as a technological measure protected by the Computer Program Protection Act(CPPA ) of Korea, the Supreme Court ruled that the 'access code' can be protected by CPPA because it has the same effectiveness for curbing infringement as the measures to physically prevent unauthorized reproduction of the works. Even though it is a case related to CPPA, not CA, it shows that the Supreme Court fully recognizes the necessity to protect 'access controls' as long as they are effective to protect the rights of copyright owners. In a more recent case, the Supreme Court ruled that the conditional access system(CAS) used in satellite broadcasting is a technological measure protected under CA. CAS is also a typical access control measure. On the other hand, in Chamberlain Group v. Skylink Technologies, the Federal Circuit of USA concluded that DMCA's anti-circumvention provisions prohibits only forms of access that bear a reasonable relationship to the protections that the Copyright Act otherwise affords copyright owners. Putting these cases of both countries together, we can observe the fact that the courts of two countries are reaching the same position about this issue as they try to find the adequate scope of protection of the technological measures by avoiding extreme positions of an overall protection or non-protection of access controls. This position that only the access controls reasonably related to the protection of copyright or other rights can be protected as a technological measure is also in accord with the related provision of WCT and WPPT. EU Copyright Directive takes the same stance. We think that this new understanding must be reflected in the revision of CA related to KORUS FTA which still hangs in the balance.