디지털콘텐츠 이용계약의 법적 성질에 관한 소고

A Brief Study on the Legal Nature of Mass-Market Digital Contents License

The rapid development of digital technology and internet has changed not only the way of thinking but also the way of life. Especially as the information society has proceeded to be transformed to a contents-oriented society from an infra-oriented society, the demand of many kinds of digital contents like movie contents, music contents etc. has rapidly increased and digital contents transactions in mass-market also has prevailed. What is more, the thing which was regarded as only the accumulation of data until now, is treated as precious goods on the mass-market after the digitalization of it. Digital contents can be reproduced equally in quality and unlimitedly in quantity. They also can be transferred simultaneously anywhere and everywhere through the internet. That causes them to be vulnerable to the copyright infringement rather than any other things on the market. In this situation, it really makes a sense that digital contents providers reject the system of sale like the sale of books, records, etc. in digital contents transactions but adopt the system of contract for licensing of digital contents to effectively protect the digital contents by themselves. But licensing the digital contents has brought about new serious troubles, being caused from the fundamental characteristics of digital contents license contracts. At the same time, it has also increased the necessity of protecting consumers in digital contents transactions. For example, there are the fundamental problems, which are caused from license contract itself, like what the meaning of digital contents license contract in a legal aspect is, how we can understand the relationship between digital contents and the media, storing them, what the legal status of digital contents transferee is and how the consumer can be protected in relation to the transferee s right etc. There are also unique problems, which are caused from the conflict between copyright act and license contract, like making copyright act invalid through a license agreement or imposing the restriction on users right which copyright act gives them. And there are consumer protection problems like warranty or self-help provisions on click-on or shrink-wrap license, which digital contents providers offer unilaterally. But the law and regulation for protecting digital contents in Korea are oriented to tangible things, so it makes serious troubles to regulate digital contents as intangible things. In the near future, we need to amend the civil law or make a new law relating to digital contents transactions, because the present law and regulation for protecting digital contents in Korea are just oriented to tangible things and cannot protect the digital contents as intangible things effectively. For that, we must review the legal nature of digital contents license above all things.