저작권법 제101조의3 제1항 제6호에 관한 연구 (A Study on the Subparagraph 6 of Article 101-3(1) of the Copyright Law)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 24권 / 1호 / 219 ~ 246페이지
· 저자명 : 강기봉

초록

The current copyright law does not directly address reverse engineering therein, but appears to admit of black box analysis and decompilation of program codes in its explicit regulations of subparagraph 6 of article 101-3(1) as well as article 101-4.
Meanwhile the studies hitherto conducted pertaining to subparagraph 6 of article 101-3(1) have merely covered fundamental interpretations and its corelation with article 101-4, leaving something more desired for concrete interpretation criteria about this regulation.
Therefore, in an aim to suggest concrete interpretation criteria on this regulation, this study has gone particularly over the requirements of limitation to author’s property rights in programs under article 101-3(1), dealt with a permitted scope of reverse engineering of a computer program, and then examined the affairs which might come of an issue in particular.
To support the above, reviews and comparisons have been made in between subparagraph 6 of article 101-3(1) and article 5 in Clause 3 of the COUNCIL DIRECTIVE 91/250/EEC of 14 May 1991 on the legal protection of computer programs (, which was thereafter replaced with the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, hereinafter called “EU Computer Program Directive”), and the judgments by Grand Chamber of the court of justice of the European Union have also been referred to out of EU’s SAS Institute Inc. v. World Programming Ltd, 2 May 2012, case C-406/10 [2012].
The subparagraph 6 of article 101-3(1) restricts the rights of temporary or permanent reproduction and permits black box analysis out of reverse engineering. And this regulation extensively admits the scope wherein free uses are permitted on the assumption of black box analysis.
And the subparagraph 6 of article 101-3(1) was initially legislated with initial reference to the article 3, clause 5 of EU Computer Program Directive, for purpose of “Vitalization of Program Technology Development”, and thus the legal nature of subparagraph 6 of article 101-3(1) is theoretically an imperative provision, and the authors are not entitled to prohibiting black box analysis by way of contract regulation contrary thereto. However, differently from EU computer program directive article 3 clause 5, restriction of behavior cannot be made by contract, (so far as other terms are satisfied) temporary or permanent reproduction is allowed for all behaviors occurring in the course of program uses regardless of whatever the license may permit. In this aspect, the utilization of what the subparagraph 6 of article 101-3(1) describes is worth materializing its meaning.
The provisions concerning reverse engineering of a computer program under the copyright law should be construed and amended from the direction that promotes the development of related industries and technologies. Accordingly it is sincerely hoped that any future proposition of either the interpretation or amendment of this regulation will develop under the premise above.

영어초록

The current copyright law does not directly address reverse engineering therein, but appears to admit of black box analysis and decompilation of program codes in its explicit regulations of subparagraph 6 of article 101-3(1) as well as article 101-4.
Meanwhile the studies hitherto conducted pertaining to subparagraph 6 of article 101-3(1) have merely covered fundamental interpretations and its corelation with article 101-4, leaving something more desired for concrete interpretation criteria about this regulation.
Therefore, in an aim to suggest concrete interpretation criteria on this regulation, this study has gone particularly over the requirements of limitation to author’s property rights in programs under article 101-3(1), dealt with a permitted scope of reverse engineering of a computer program, and then examined the affairs which might come of an issue in particular.
To support the above, reviews and comparisons have been made in between subparagraph 6 of article 101-3(1) and article 5 in Clause 3 of the COUNCIL DIRECTIVE 91/250/EEC of 14 May 1991 on the legal protection of computer programs (, which was thereafter replaced with the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs, hereinafter called “EU Computer Program Directive”), and the judgments by Grand Chamber of the court of justice of the European Union have also been referred to out of EU’s SAS Institute Inc. v. World Programming Ltd, 2 May 2012, case C-406/10 [2012].
The subparagraph 6 of article 101-3(1) restricts the rights of temporary or permanent reproduction and permits black box analysis out of reverse engineering. And this regulation extensively admits the scope wherein free uses are permitted on the assumption of black box analysis.
And the subparagraph 6 of article 101-3(1) was initially legislated with initial reference to the article 3, clause 5 of EU Computer Program Directive, for purpose of “Vitalization of Program Technology Development”, and thus the legal nature of subparagraph 6 of article 101-3(1) is theoretically an imperative provision, and the authors are not entitled to prohibiting black box analysis by way of contract regulation contrary thereto. However, differently from EU computer program directive article 3 clause 5, restriction of behavior cannot be made by contract, (so far as other terms are satisfied) temporary or permanent reproduction is allowed for all behaviors occurring in the course of program uses regardless of whatever the license may permit. In this aspect, the utilization of what the subparagraph 6 of article 101-3(1) describes is worth materializing its meaning.
The provisions concerning reverse engineering of a computer program under the copyright law should be construed and amended from the direction that promotes the development of related industries and technologies. Accordingly it is sincerely hoped that any future proposition of either the interpretation or amendment of this regulation will develop under the premise above.

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