특수한 유형의 온라인서비스제공자책임제도의 개선방안 - 기술적조치와 시정명령⋅시정권고 제도를 중심으로 -

Abstract

Development of information technology implies informationization, digitization and networking of works and refers to the advent of new online services, which necessarily involves the liability of the service providers in the new online service domains. In Korea, a series of legal argumentations on the Soribada case, the disputes arising from peculiar websites so-called webhards, the webhard registration policy and etc. are evaluated to have opened up a way to settle such legal disputes to some extent. Nevertheless, illegal downloads via webhards still occur frequently. The existing personal computer-based webhards have been evolving into online platform-based services such as mobile webhards, torrents, cloud computings and applications. Hence, the liability of online service providers are still worth discussing . Given the worthiness of such discussions, the present study aims to “suggest measures for improving the legal regime” for coordinating in balance the conflicting interests in “copyright protection” against the infringement that may arise out of “embracing new technological advances” and to “establish understandings for the efforts to settle the disputes” arising from the new online services that have been continuously emerging as IT evolves. In Korea, discussions and disputes on the liability of online service providers were unfolded, as is well known, with our idiosyncratic online service providers, Soribada and webhards as the central figures. The Soribada case was settled by a court ruling, while the webhards issue was wrapped up by the agreements with some right holders, the guidelines for technical protection measures and the webhard registration policy prescribed by Telecommunications Business Act and etc. However, our markets are governed by the webhard registration policy that applies the guidelines for technical protection measures, which are based on the technical measures(i.e., filtering) prescribed by Article 104 of Copyright Act. Such filtering technology is limited in terms of copyright information settings. To overcome this limitation, we need to improve our legal system. Moreover, our subsequent remedial measures for copyright infringement such as corrective orders and recommendations have not been properly handled due to the difficulty in implementing such measures. If the infringing party has not complied with the corrective recommendation issued by the Copyright Committee, the party will be subject to the corrective order issued by the Ministry of Culture, Sports and Tourism. The problem is that the suspect eliminates the infringing copies during the appeal period and consequently the object of the corrective order disappears. If we fail to overcome such a problem, it is obvious that these remedial measures will be de facto invalidated. We need discussions on the measures to assure their effectiveness. The present study suggests inevitability and directions for improving the webhard registration policy and the corrective order and recommendation system as a part of the regulatory practices for the responsibility of online service providers.