부정경쟁방지법상 데이터 부정사용행위의 법적 쟁점

Abstract

It has been over two years since the introduction and implementation of clause (k) in the Unfair Competition Prevention and Trade Secret Protection Act (hereinafter referred to as UCPA). The year 2022, marking the enforcement of Clause (k), witnessed a heightened interest in data, leading to a surge in related legislative activities. Recognizing that protecting data through exclusive property rights could impede its smooth and fair distribution, the UCPA introduced Clause (k) as a behavioral regulation form of unfair competition, rather than creating a new right. This clause specifically governs data that is limited in its provision. Prior to the introduction of Clause (k), various laws such as the trade secret protection provisions under the UCPA, the database producer protection provisions under the Copyright Act, and the content protection provisions under the Content Industry Promotion Act (hereinafter referred to as the Content Industry Act) aimed to balance the protection and utilization of data. Therefore, the necessity and effectiveness of Clause (k) were subjects of considerable debate. However, societal changes highlighted the need for protection of data that serves as a transaction object rather than as trade secrets. Furthermore, the regulation of unstructured data or data not systematically arranged, which is difficult to protect under existing legal frameworks, necessitated the inclusion of Clause (k) in its present form. The introduction of Clause (k) in the UCPA has thus opened a new avenue for regulating the misappropriation of data under intellectual property law. Nonetheless, numerous debates regarding the legislative necessity, the scope, and the applicability of this provision emerged during its inception. The complex factual requirements have led to interpretative challenges and disagreements. Given that more than two years have elapsed since its implementation, it is imperative to review these requirements and legal issues and to consider potential improvements if necessary. This paper aims to provide a comprehensive overview of Clause (k) and sequentially examine the major legal issues based on this foundation.