저작권법상 처벌규정의 문제점과 개선방안

Abstract

Numerous people who violated copyrights were not even aware that their actions violate the Copyright Act. This raises the question of whether the punitive provisions of the Act are fulfilling the guarantee function of nulla poena sine lege, that is the principle that there shall be no criminal liability without a law providing for it. If the punitive provisions of the Copyright Act are to achieve the purpose of the Act, the citizens who are subject to the provisions should know about and understand them. However, the punitive provisions of the Copyright Act only consist of three Articles from 136 to 138, and many of these are simple references to other provisions, such as Article 136 (2) 3-2 which provides criminal punishments for “any person who has violated Article 103-3(4).” Therefore, these punitive provisions by themselves often do not inform the ordinary citizen which actions are subject to criminal penalty under the provisions of the Act. In particular, Article 136(1) of the Act contains an unclear catch-all, providing for criminal penalties in case of any violation of“other property rights protected under this Act.” It is unclear what these other rights are, and the rights subject to protection should be made into a closed list. Furthermore, as seen above, Article 136 (2) 3-2 to 3-7 are drafted in such a way that a reader cannot tell from the provisions alone which acts are prohibited. This may be seen as a simple concession to legislative convenience, but such drafting falls short of the guarantee of nulla poena sine lege for the ordinary citizens who are subject to possible criminal penalties under the Act. This lack of usability in the punitive provisions of the Copyright Act means that ordinary citizens cannot easily determine whether their actions are in violation of the Act. The purpose of general deterrence in including punitive provisions, namely deterring citizens from copyright violations, is compromised as well. This article, proceeding under the assumption that the full guarantee of nulla poena sine lege can only be fulfilled if the ordinary citizen can easily determine matters relating to crimes and penalties from the punitive provisions of the Act, aims to provide suggestions on the drafting of the punitive provisions of the Copyright Act in order to meet that guarantee to the fullest. Meanwhile, the development of human culture and technology, the ultimate goal of the Copyright Act, can only be achieved by protecting copyright and motivating copyright holders to create, and by stimulating the fair use of copyright works to urge the creation of new works based on prior creations. Therefore, the Copyright Act has as its central function the harmonization of two interests in tension with each other: The protection of copyright and fair use of copyright works by the public. In light of this the article also reviews whether the punitive provisions of the Copyright Act protect the rights of creators and stimulates fair use of copyright works by the public, and presents related problems and possible solutions.