빅데이터에 대한 공정이용법리 적용에 관한 연구 - 법경제학적 관점을 중심으로 -

초록

In recent times, Big Data is one of the hot issues across various fields of social sciences. It has a potential to contribute to the value creation in society. However, Big Data are collected from diverse kinds of data which includes private information. The Big Data is faced with the problem of copyright infringement. It is necessary to apply fair use doctrine to Big Data in order to rescue the big data industry from copyright infringement. However, recent technological and lawful changes provide uncertainties surrounded with protection of fair use in the digital arena. In technological aspect, DRM technologies attempt to contribute to make copyright infringement impractical or costly. What makes DRM controversial is its potential to over-deter lawful noninfringing uses of protected content. Furthermore, in the area of law, Digital Millenium Copyright Act(DMCA) of United States, prohibits users from circumventing Technology Protection Measures (TPM) employed by right holders in order to control access to their works and EU Directive establishes database right. Those changes result in the imbalance between the rights of users and right holders. Since the government, itself, has collected funds or disseminated so much of this data in former times, it was legitimate for the government to establish the rules of access and uses that apply. The Copyright Act of 1976 prohibits the federal government from claiming protection of its publications. On the other hand, in the age of database right, there is no evolving public domain substratum from which either research workers or second comers are benefited. The database right ignores the important distinction between ideas and the author’s expression. All those factors challenge the fair use doctrine of copyright. This study constructs an economics model of copyright based on Landes and Posner’s works to test the compatibility of fair use doctrine with big data. We decompose the costs of copyright into access cost and, administration, and enforcement costs, following Landes and Posner's copyright model. In digital age, it is easy to collect, assimilate and store the personal record. It forms digital personality which is distinct from existential personality. The ongoing discussion of information privacy is expected to enhances the access cost to copyrighted materials. In addition, DRM technologies significantly reduce the administration and enforcement costs, which is favorable to copyright holders. Accordingly, we consider to apply the fair use doctrine in Big Data. This study discusses whether fair use doctrine is applicable to Big Data and shows that the Big Data is compatible to transformative use based on fair use doctrine.

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