기술적 보호조치와 공정이용에 관한 소고 - DMCA에 대한 검토를 중심으로
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[국문 주제어]

기술적 보호조치, 공정이용, 접근통제, 이용통제, DMCA, DRM

A Study on the Technical Protection Measures and Fair Use: 
A Critical Perspective on Anti-Circumvention Provisions of DMCA

Oh, Kil-Young
Lecturer of Sangmyung Univ.

Last month, Korea and the United States wrapped up their fourth round of talks for the free trade agreement(FTA) in Jeju Island. Intellectual property was a major issue which was hotly debated between the two countries. Through this FTA, the United States are asking, Korea to provide a higher level of protection for the owners of intellectual property, on the basis of anti-circumvention provisions of DMCA(Digital Millennium Copyright Act) that prohibits the circumvention of technological measures which effectively controls access to copyrighted works.
Influential copyright holders have sought to popularize and strengthen DRM (Digital Right Management) that is technical protection measures permit to restrict user's access and control of content. They have claimed an early victory in the form of the anti-circumvention provisions of DMCA. However, now they want more not only in the United States, but in the world that use digital methods and networks. This study aims to point out the limitation and some problems of anti-circumvention provisions of DMCA and suggests an adequate solution to this issue.
After emerging the digital age, many commentators have made discussions of the freedom and regulation in the digital circumstances. They have focused on the legislation of state, and presumed that digital circumstances would be opposed to the copyright law. For example, most of copyright law and WIPO(World Intellectual Property Organization)'s agreement defined the digital circumstances as an accelerator of illegal copy and transfer to copyrighted works, and intended to regulate with the stronger technical protection measures of copyright owners. On the contrary, information-libertarian declared that the digital circumstances are free, and no government or legislation could control the flowing of information. But, liberty on the digital circumstances will not come from the absence of the legislation. Rather, both regulation and liberty will come from the law, technology, norms and market. So, this article urged that we need to think more about how these regulations are harmonized with the digital circumstances. On this views, this article gives careful consideration to a DMCA's problem, which would be opposed to fair use, and points out the value of copyright which is the delicate balances between copyright owner's interest and public interest, especially on the digital circumstances.

[Key words]

Technical Protection Measures, Fair Use, Access Control, Use control, Digital Millennium Copyright Act, Digital Right Management