저작권침해와 온라인서비스제공자의 형사책임

Abstract

Recently, information communication network such as Internet is the most important place in which crimes appear in number and level compared with crimes in real world. On-line Service Providers(OSP) are regarded as having a substantial role to control and regulate the illegal behavior infringing of Copyright, so they should be liable to civil or criminal. In Soribada and Web-hard cases, the courts agreed the criminal responsibility of On-line Service Providers as assistance or aid. This means OSP's liablity is not regarded as principal offender in criminal. But they don't accept the opinion of applying exclusionary clause of Copyright Act. They want OSP to fulfill the highest level of technical filtering measures. Passive filtering measures cannot be the method of exemption from responsibility. But above decisions do not show the discrimination between civil cases and criminal cases. Especially thinking about criminal responsibility of OSP, it is very important to consider the principle of the legality of crimes and punishment. The strengthening the liability of OSP may bring about the chilling effect of freedom of speech and the use of Internet, and lead the conclusion of disregard of development of information technology and industry. Though OSPs have a duty of care to remove and manage the illegal contents on their service boards, the level of duty to care is restricted when they know the contents are obviously illegal and violate the copyright act. And the ability of OSP to control the contents according to technical or economical conditions also should be considered.