글로벌 전자도서관의 구축 — WTO TRIPs 협정 하에 구글 프로젝트 사례 분석과 제언 —

Abstract

The Global Books Library Project, which has been promoted by Google as an ambitious business since 2003, is facing the stranding crisis. The U.S Federal District Court did not approve the 2009 dispute settlement. agreement of the class action in March, 2011. The denial of approvement was largely due to possibility of copyright infringement, Google’s getting near-monopolistic position, and the problem that the copyrights of orphan works might be belonged to Google. As recommended by the court, future approval depends on the amendment from opt-out way in ASA to the opt-in. However if it is amended to opt-in method, the merits of Global Books Library would be substantially shrunk. On the analysis of ASA under WTO TRIPs Agreement, the reversed approach to copyright on which the copyright holders need to assume copyright infringement unless he/she takes procedure to opt-out, is conflicted with the exclusive rights of copyrighters and the so called anti-formality principal. And also it is hard to say that ASA completely accords with the principles of National Treatment and MFN. Such conflicts between ASA and TRIPs Agreement are not clearly justified by requirements on the “limitations and exceptions” of Article 13 of TRIPs Agreement. The Global Books Library Project has double-sideness which enhances the copyright crisis in digital era as well as improves dramatically the access to books and materials. The protection of copyright on the tranditional and current system is being faced to the crisis by the arrival of digital era. The copyright crisis would be accelerated when Google allows the access to the digitalized books and digitalized other copyright works through Internet. However, the strengthening of copyright protection by traditional way is questionable on its effectiveness as well as would negatively affect on the digital base establishment and on the Internet as a global united network. This shows that the current way of copyright protection does not accord with the development of information technology and exploitation flow. In the crisis era, the problem of current system is more conspicuous, being considered that the access to books and materials would be dramatically improved if Global Books Library is constructed. Therefore, a new change should reflect the reformation of domestic (national) and international system which satisfies future digital trends, The improvement in domestic and international system is driven under the situation where the accelerations in digitalized contents require changes in the existing copyright context and protection. The introduction of so called ‘Global Internet Collective Licensing System’ which allows internet users licensing to use works on internet, is necessary to meet copyright crisis and to catch up digitalization. A system like ‘Registry,’ to which Digital Copyright and Reproducing Right, related Neighboring Rights and Copyright could be deposited, and Society of Copyright should be clearly prescribed in TRIPs agreement. As domestic law, legislation for digital copyrights and copyright law system for reproducing rights concerning digital works is needed. Especially detailed provisions for ‘Society of Copyright’ and the establishment of Copyright Registry as an general institution should be enacted by legislature. Also, it is desirable to introduce profitable copyright trustee organization for digital contents. As a short term policy measure, ECL should be introduced in limited scope like transmission and re-transmission of digital terrestrial and digital satellite broadcasting and as a long term policy measure, ECL needs to be expanded to book digitalization and establishment of e-library.