著作權 保護를 위한 技術 措置의 法的 保護에 關한 硏究 = (A)study on the legal protection of the technological measures for protecting copyright
저자
발행사항
서울: 東國大學校, 2003
학위논문사항
발행연도
2003
작성언어
한국어
주제어
KDC
365.23 판사항(4)
DDC
346.0482 판사항(21)
발행국(도시)
서울
형태사항
vii, 223p.; 26cm
DOI식별코드
소장기관
In the digital network environment, the copyright holders are increasingly resorting to technological measures to protect their rights in their works or other subject matters, in lieu of legal protection and legal remedies with that copyright law provided. To a large extent the solution to a loss in control that the right holder have had with the exploitation of their works could be sought in technology itself. It must be effective means to protect the copyright owners against infringement of their rights.
However, even though the technological protection measures are becoming highly sophisticated, all the measures could be eventually defeated by technically sophisticated users. It is said that it is simply a question of time and of the relation between the effort necessary to circumvent and the value of the decoded content. While the ordinary users are unlikely to have the skill to hack around the technological measures, they could do it with the aids of some circumvention devices or the skilled persons.
Most of the delegations, gathered in Geneva, Switzerland in December 1996, recognized this problem and lastly agreed to introduce some protection to the technological measures for protecting copyright and neighbouring rights. It was not so easy to make an conclusion on this issue, because there was a big chasm between pro-copyright countries such as U.S.A. and European Union member countries and developing countries. After a long debate, the delegations could reach to a single compromise that was radically changed from the basic proposal by the chairman of the expert group.
The provision included in WIPO Copyright Treaty Art. 11 is as follow; Approximately same provision was also inserted into its twin treaties, i.e. WIPO Performances and Phonograms Treaty.
"Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."
Now, more than 7 years have passed from the date of adoption of the Treaties, many countries, including U.S.A, European Union, Australia, Japan, finished implementation of the Treaties and some more countries are making an effort to introduce these provisions into their respective regional or national laws. However, these provisions are still contentious ones, because the above mentioned pro-copyright countries, especially U.S.A., provided arguably too protective and wide protection to the technological measures and has been urging other developing countries to follow their legislation through bilateral or multilateral trade negotiations, e.g. annual review based upon its trade act and negotiation for a free trade agreement.
There are two main issues with the protection of the technological measures. One is whether the access control measures are to be the subject matter of this protection, and another is how we can maintain the exceptions and limitations to the copyright intact, though the application and legal protection of the technological measures.
With regard to the access control measures, there are two kinds of access, access to the server or the copies of the work and access to the work itself. The access to the copies of the work, so called initial access, can be assimilated with the opening the door of the book store or the book shelves. Actually this kind of act does not imply the copyright infringement under the current copyright regime. The legal doctrine of trespass can be rather fitted for this situation.
The issue of access to the work itself, in other words continuing access, is more troublesome one than the issue of access to the server of the copies of the work. Access to the work means using, enjoying or experiencing the work. This kinds of acts are also not included in the realm of the copyright world. Therefore if the access control measures are protected, the authors can have in fact a access right or use right to their works, only if they apply access control measures to the works. Access right or use right is not recognized and cannot be tolerated at least under the present copyright regime.
The WIPO Treaties says the subject matters of the protection are "... technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention..." Thus, the access control measures cannot be included in the obligation of the Treaties.
The contracting parties have the discretion to extend the protection to the subject matter that they are not obliged to do so, because the treaty obligation just says minimum standard of protection. Now, we have to consider whether there is need to provide authors with the control over the access to the works or the copies of the works and if the answer is affirmative, then we have to find appropriate solution to introduce the power to control those kinds of accesses.
On this issue of the needs of access control power, there seem to be and can be lots of pros and cons. Thus it is at present not proper to say that the introduction of access right or use right is appropriate or not. And, we can say clearly that we have never decided that kind of decision yet. That kind of control power must be given through the same way that the rights, authors already have, were given to them. It is clearly not through the back door, i. e. the protection of the technological measures.
Technologies hear only the voice of their master and are blind to the purpose of using the works. Even though there is no legal protection, ordinary people cannot circumvent the technological measures for legitimate exploitation of a work. Using this situation, the right holders could extend their control over the boundaries of copyright. And now we are talking about the legal protection of those technological measures. Without appropriate measures for preserving the room for the exceptions and limitations to the copyright, the liberty of users will be choked with the application and legal protection of the technological measures.
We have two approaches for the harmonization of legal protection of the technological measures and preservation of the exceptions and limitations to the copyright. One is negative approach. With regard to the use control measures, U.S and Japan excluded circumvention itself from the protection. So, if certain exploitations are done through the circumvention of the use control measures and they can be fallen in the sphere of fair use, then no liability can apply to them. However, even though these kinds of acts are allowed, actually there are not so many users to do so.
Another is positive approach. European Union members, e.g. United Kingdom and Germany, are the examples. In United Kingdom, where the application of technological measures to a copyrighted work prevents a person from carrying out a permitted act in relation to that work then that person may issue a notice of complaint to the Secretary of State. Then, the Secretary of State may give to the owner of that cop on for the purpose of ensuring that the owner makes avaliable to the complaint the means of carrying out the permitted act the subject of the complaint to the extent necessary to so benefit from that permitted act. Germany also has similar provisions.
These two approaches are not mutually exclusive. So, we can harmonize the legal protection to the technological measures with the exceptions and limitation to the copyright through the mixture of negative approach and positive approach. Then, one who wants to legitimately exploit a work can circumvent technological measures without liability, and one who cannot circumvent the measures by him/herself ask the government a help.
If we want to preserve delicate balance on copyright regime, we have to review the impact of the application and legal protection of the technological measures, and take a appropriate measures for preserving the room for the exceptions and limitations to the copyright. If we are negligent to do so, we would fail to get the ultimate goal of sustainable development of culture and economy.
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