저작권법상 일시적 복제에 관한 소고 - 한미 FTA 합의문을 중심으로 -

Abstract

Discussions about temporary copy have mainly focused on the temporary copy on the RAM(random access memory). Copyright law demands two requirements to be copy; to be tangible material and to fix. Many scholars have said that the temporary copy on the RAM cannot be copy because there is no fixation, the temporary copy, therefore, is not the infringement of copyright. With the progress of technology, the distintion between save on the RAM and save on the hard disk became vague and needless. For example, some parts of the hard disk can be used as swap memory, which is just extension of physical memory and do the same function as physical memory. Furthermore Korea-USA FTA demand that temporary copy should be considered as "copy" as the USA have always demanded to FTA-partnership country. Thus the necessity of re-examine the definition of temporary copy and it boundary has taken place. Actually, many scholars in the USA have been argued about the MAI decision which stated that the temporary copy could be included in copy. If the temporary copy is defined as the act of saving works in the manners that after substantial time, the original works would be deleted or cannot be restored as it were, many technologies like caching, copies in the transmissions and streaming can be included in the new definition of the temporary copy. After the ratification of assembly, if we revise the copyright act simply so as to include the temporary copy in copy, the revision can make more profound problems. First of all, current copyright act doesn't have sufficient provisions that can be applied to re-defined temporary copy. For example, proxy server cannot be free from the infringement of copyright because there is no provision that immunize its responsibility. Secondly, the provisions about the new definition of the temporary copy is scattered without any system in the copyright law, this can make the copyright act difficult to understand and badly organized. Thirdly, the balance between the right-holder and the user can be seriously tipped to compare with the copyright of foreign country. Many other countries have the provisions about exemption of the temporary copy under special conditions. Without those provisions, the use of copyrighted works would be substantially restricted. It is necessary, therefore, that new immunization provisions and the new standard about the temporary copy should be made. The new provisions should be established under the full consideration of existing provisions such as private copy exception, Korea-USA FTA, open standards that can be applied to various technology and three step test of Berne convention. We should keep it in mind that the absence of the new provison, or even lack of consideration could bring lots of lawsuit and confusion.