저작권법상 디지털음성송신의 법적취급에 관한 고찰― 미국법제와의 비교분석을 중심으로 ―

Under the current Copyright Act, music record producers are entitled to the right of Digital Audio Transmission. However, the right is not one which requires voluntary licenses, but one which provides satatutory licence to everybody without negotiation with music record producers if the fee which Korean Copyright Committee decides is paid. The reason for this legislation is that we can not anticipate the current technological evolution and construct a legal concept by planning only ‘real-time Internet music broadcasting(webcasting) service in pure meaning’ similar to radio broadcasting. However, as digital transmission technology advances, the digital audio transmission Service Provider seems to fulfill the simultaneousness of receipt formally, but by providing personalized webcasting, such as searching for singers, specific tunes, or providing channels for specific users, it provides services that enjoy a virtually similar effect to forwarding. Therefore, it is difficult to justify discriminatory treatment only by the “simultaneousness of reception” standard adopted by current law.
Both the United States and Korea are fundamentally the same as to discriminate between the exclusive rights of the music record producers and the rights to claim compensation. If users expect to be able to search for and use music and willingly be able to buy, an exclusive right should be granted to the music record producers , otherwise statutory licence should be granted. However, the United States is subdividing the criteria for distinguishing it, and Korea depends only on ‘simultaneousness of reception’. Meanwhile unlike the US, the Republic of Korea acknowledges the status of neighboring rights. It is intended to provide the broadcasting service provider or music record producers that have contributed to the development of the culture by providing a revolutionary means of delivering the work with an opportunity to recover the enormous capital they have invested. Therefore, it is not reasonable that the statutory license granted to the broadcasting service provider is recognized by digital audio transmission service providers as it is because broadcast and digital audio transmission are similar in their service content. Also, considering the speed of development of Internet-mediated technologies and services, it is also undesirable to completely differentiate ‘forwarding’ and ‘digital audio transmission’ through the concept of the law. Therefore, this study proposed to delete the concepts of ‘digital audio transmission’ and ‘digital audio transmission service provider’ and include them in ‘forwarding’. In addition this study proposed a method to reflect the difference of service by differentiating service charge rate according to the user's selectivity and the possibility of replacing the sale of records.