As a result of the combination of the Internet and digital technology, we are in the midst of a debate over the proper scope of copyright. Over the years the length and scope of copyright has been increased too much, crowding out the rights of users to consume expression and use it to create expression of their own. In this point, the increasingly controversial nature of copyright has created interest in the relationship between copyright and freedom of expression. In new Korean Copyright Act, so-called ‘three-strikes out’ provision has increased this interest still further. According to this new provision, the government has the power to shutdown an online message board for a maximum six months after the site is warned for a third time to delete pirated content and prevent its movement. In addition to the ‘three-strikes out’ rule, Internet users who repeatedly upload copyrighted content without permission could lose their Internet accounts. Under the new Act, the minister of culture, sports and tourism is granted the authority to order the closing of online message boards or suspending individual Internet accounts with or without requests from copyright holders. This has caused the issue of the conflict between copyright and freedom of expression. Therefore, the purpose of this paper is to examine the interaction of copyright and freedom of expression. The paper is divided into four parts. The first part provides a historical relationship between copyright and freedom of expression for the discussion of problem at hand, namely, ‘three-strikes out’ rule. The second part outlines the traditional point of view about a tension between copyright law and the First Amendment in the U.S., focusing on professors Melville Nimmer’s 1970 Article and Paul Goldstein’s 1970 Article. Their articles advanced relatively modest arguments about how the conflicts between copyright law and free speech could be internally reconciled. Also, the second part examines professor Netanel‘s ‘speech entitlement allocation regulation’ theory. This theory is very helpful to review and criticize the internalization of conflicts. The third part examines the decision, by the French Constitutional Council, which reviewed French ‘three-strikes out’ law as a violation of the constitution, and compares with the so-called ‘three-strikes out’ provision in Korean Copyright Act. Finally, this paper concludes with an unconstitutional assessment of ‘three-strikes out’ provision.
Ⅰ. 서 론
Ⅱ. ‘저작권과 표현의 자유’의 상관관계에 관한 개괄적 검토
Ⅲ. 프랑스의 이른바 ‘삼진아웃제’ 법과 표현의 자유의 문제
Ⅳ. 맺음말