개정 부정경쟁방지법상 데이터 보호에 관한 소고

Abstract

In the amendment of the Unfair Competition Prevention And Trade Secret Protection Act on December 7, 2021, act of unfair competition regarding using data unfairly is added. The act is scheduled to be implemented on April 20, 2022. The amended Unfair Competition Act aims to protect against the creation of economic value using big data to promote the use, utilize and distribute. This paper suggests a reasonable interpretation of several specific issues in accordance with the above purpose. Due to the conflict between the legislative purpose of protecting ‘unstructured data’ and the concept of data, the issue of overlapping protection with the Copyright Act may be raised. The concept of data must be technical or business information that meets the limited access, accumulated to a significant extent, and electronically management, and is distinguished from trade secrets through the requirement of excluding information that is kept secret. This study is focused on the issue of whether the meaning of limited access allows only the case of providing data to outsiders and the issue of lacking protection related to electronically management and distinction from trade secrets. And it is understood that the types of unfair competition are defined by referring to some types of trade secret infringement in consideration of the characteristics of the data. It is characteristic that there is no provision about subsequent acquisition in good faith. Act of unfair competition in relation to the circumvention of technological measures is unique compared to that of Unfair Competition Act in Japan. And comparing with the provisions in the Copyright Act, there was no definition of technical measure and that the types of act were limited. Unlike other types of unfair competition related to data, it is also characteristic that criminal punishment is provided.