저작권 제한사유 중 「사적이용을 위한 복제」와 「미술저작물등의 자유이용」에 관한 소고- 기술발전 등 사회 변화에 대응하여 -

Abstract

The court asks for the requirements of the legality for the original that were not specified in the regulation of copyright law in order for the duplicating activity using webhard to be admitted as the Reproduction for private use. As webhard is a kind of system that an individual duplicates one by one through the service provider not like P2P that the duplication by multiple users is carried out simultaneously, it would be originated from that there is a room for it to be admitted as the personal duplication by being sorted as 'the use within the restricted range such as home'. However, such interpretation of Reproduction for private use by the court does not seem appropriate for many reasons as it may be the one that violates the stipulation of copyright law. But, as the realistic necessity of restricting the private duplication using webhard exists, it can be regarded as the joint tort in a regard that the copyright of its owner is infringed as it reaches the level that it exceeds the private duplication eventually by combining individual duplicating activities of webhard users. The use of art works displayed in the open public place is freely allowed as the another ground of restricting the copyright. By the way, the court interprets the meaning of open public place as the outdoor one in restrict way. However, it can be the inappropriate interpretation considering the reality that the indoor place can be more open to public than outdoor place occasionally as well as literal interpretation of copyright. So, to restrict copyright of the art works exhibited in indoor place open to public, I tired to find out the possibility that Incidental inclusion of copyright material newly revised regulation or fair use regulation can be applied as alternative way. But restricted copyright of the art work, so called freedom of panorama is usually admitted in case of background of picture or video that it can not be easily seen as incidental inclusion or it dose not have any meaningful changes. So it is somewhat hard to apply those regulations to restrict copyright of the art works exhibited in open public indoor place. Consequently, it is more proper that interpreting the copyright law Article 35, Exhibition of Reproduction of Works of Art, etc., can be applied even to the art works exhibited in the open public indoor place.