목 차
 

Ⅰ. 서 론 ··············································································· 1
Ⅱ. 현행 저작권법 중 형사책임 조항의 구조분석 ···················· 7
     1. 현행 저작권법 중 형사책임 관련조항의 내용 ······································ 9
     2. 형사책임 관련조항의 변천 ······························································· 12
     가. 서설 ························································································ 12
     나. 2006년 전면개정시 형사처벌 조항의 큰 변화 ····························· 13
     다. 형사처벌의 부작용과 선도조건부 기소유예제⋅고소장각하 제도의
     등장 ························································································ 18
Ⅲ. 저작권 침해의 형사책임에 관한 제외국의 입법례 분석 ··· 21
     1. 미국의 저작권침해 형사책임 관련규정 및 운용 ································· 23
     가. 미국 저작권법 제506조 등의 현재 내용 ··································· 23
     나. 디지털 저작권 침해에 대한 처벌강화의 동향 ······························ 27
     다. 미국 검찰의 운용지침 ······························································· 37
     2. 일본의 저작권법 중 형사책임 관련규정 ············································ 40
     가. 형사책임 관련규정의 현황 ························································· 40
     나. 과거의 논의 ············································································· 45
     다. 2006년 12월 전면개정된 저작권법에서의 비친고죄 일부 확대 ····· 46
     라. 현행법상 친고죄와 비친고죄의 정리 ··········································· 50
     마. 이후의 논의내용 및 향후변화전망 ·············································· 53
     3. 독일의 저작권법 중 형사책임 관련규정 ············································ 60
     가. 개관 ························································································ 60
     나. 독일 저작권법 형사관련규정의 체계 ··········································· 63
     다. 주요 조항별 검토 ···································································· 65
     라. 인터넷환경과 형사책임 ······························································ 80
     마. 결론 ························································································ 84
     4. 유럽연합(EU)의 처벌관련 지침 ························································· 86
     가. 종전의 지적재산권 강제집행 지침 ·············································· 86
     나. 현재 논의 중인 지적재산권 강제집행 보장을 위한 형사제재 지침 · 87
Ⅳ. 저작권법상 형사처벌의 현황과 문제점 ···························· 91
     1. 서 ································································································· 93
     2. 관련 사례 ······················································································ 94
     가. ‘복제⋅공연⋅방송⋅전시 등의 방법’이라는 문구에 ‘배포’도 포함되는지 여부······ 94
     나. MP3 파일을 컴퓨터에 저장하는 것이 복제에 해당하는지 등의 여부················· 96
     다. 피고인에 범죄의 고의가 있는지 여부 ········································· 99
     3. 형사처벌의 효율성 ········································································ 103
     가. 형사처벌의 목적 ····································································· 103
     나. 형사처벌의 효과 ····································································· 104
     다. 형사처벌의 범위 ····································································· 106
Ⅴ. 우리 판례의 특수한 해석 -불법원본 다운로드의 형사처벌가능성 ························ 109
     1. 논의의 필요성 ·············································································· 111
     가. 한국에서 온라인상 침해의 폭증과 그 침해자들에 대한 형사조치의 잦은 활용·································· 111
     나. 형사조치에서 침해부정의 근거로 주로 내세워지는 항변이 사적복제임·············································· 112
     다. 사적복제 성립여부에 대하여 추가 논의가 필요한 부분 -불법원본의 다운로드   ······························· 113
     라. 원본의 불법성이 사적복제조항의 추가쟁점이 된 배경 ················ 115
     2. 외국에서의 관련동향 ····································································· 118
     가. 베른협약 등 ··········································································· 118
     나. 일본 ······················································································ 119
     다. 미국 ······················································································ 123
     라. 유럽연합 등 ··········································································· 131
     3. 불법원본 다운로드의 사적복제가능성에 관한 한국의 논의 ················ 135
     가. 2004년 입법시도의 좌절 ························································· 135
     나. 학설 등의 현재 상황 ······························································· 136
     4. 분석 ···························································································· 139
     가. 현행법상에서는 불법이라고 보기 곤란함 ································· 139
     나. 사적복제 요건의 수정을 신중히 검토해볼 필요 있음 ·················· 141
     다. 두 가지 대안적 방향에 대한 고찰 ············································ 145
Ⅵ. 한⋅미 자유무역협정에 따른 개정 합의부분 등의 고려필요성 ····················································· 149
     1. 자유무역협정 중 형사처벌 관련 내용 ·············································· 150
     2. 위 협정 중 형사책임 관련규정의 검토 ············································ 152
     3. 현행 저작권법의 처벌수준과의 비교 및 향후 개정방향 ····················· 153
     4. 그 외에 고려할 조약 등 ································································ 155
     5. 형사책임조항과 유기적으로 연결되는 기존조항들의 고려 ·················· 155
Ⅶ. 결론: 한국 저작권법 형사처벌조항의 바람직한 개정 방향 ····························································· 161