저작권법상 침해간주규정의 재검토

Abstract

Among the several types of indirect infringements of copyright, ‘acts deemed to constitute infringement (article 124)’ is the only one that is stipulated in the copyright act. This article reviews whether there is any need to amend article 124 and whether there is any need to stipulate other types of indirect infringement under the copyright act in order to clarify indirect infringement. First of all, both ‘exportation’ and ‘possessing for exportation’ of infringing items ‘in the course of a business’ should be included as ‘acts deemed to constitute infringement’ for the following reasons. Exportation of infringing items is regulated as infringement not only under the Design Protection Act, Trademark Act, Unfair Competition Prevention And Trade Secret Protection Act and Protection of New Plant Varieties Act in Korea, but also under the U.S. copyright law and copyright law of Japan. Next, in order for the border measures to be effective, exportation should be regulated since, other than trademark infringement, copyright infringement is a key concern at the customs office. In addition, any act of pre-export phase not deemed as distribution and goods merely passing through Korea can be regulated as copyright infringement. Furthermore, exportation can be enjoined even where one who exports infringing items is different from whoever copies or distributes infringing items in pre-export phase. Additionally, possessing for exportation should be regulated for effective enforcement regarding exportation. Secondly, offering for distribution should be included as ‘acts deemed to constitute infringement.’ Offering for sale is an infringing act under the industrial property law. The need to regulate preparatory activities such as ‘offer’ in the copyright law is the same as in the industrial property law. Although there exist both pros and cons regarding subparagraph 3 of article 124(1), the pro argument is more persuasive for the reasons as follow. Subparagraph 3 does not create the right to use under the copyright act since it is about ‘acts deemed to constitute infringement’ and it only applies to the use for business of infringing copies of a computer program with the knowledge of such infringement. Next, it is necessary to prohibit the use for business of infringing copies of a computer program since it would cause a great loss to the owner of copyright in the computer program. In addition, there are differences between the patent act and the copyright act in that, although article 127 of the patent act regulates preparatory activities of direct infringement, subparagraph 3 of article 124(1) does not and penal regulation against ‘acts deemed to constitute infringement’ is cleary stipulated in the copyright act. However, since penal regulation under article 136(1) applies to subparagraph 3 of article 124(1) with regard to temporary reproduction in the course of use of a computer program, subparagraph 4 of article 136(2) and subparagraph 1 of article 140 should be reviewed for amendment purposes. Finally, it would be better to regulate other types of indirect infringement based on the case law than to stipulate those under the copyright act.