WILMap: South Korea

LEGISLATION

Copyright Act, last amended by Act No. 12137, Dec. 30, 2013 (English Version)
 
[(1Article 102 provides safe harbor for intermediaries from third party copyright infringement. The provision was amended twice in 2011 first to reflect the Korea-EU FTA and then the Korea-US FTA. EU Directive 2000/31/EC Section 4 “Liability of intermediary service providers” was almost exactly reproduced verbatim in the Intellectual Property chapter of the Korea-EU FTA, and the intellectual property chapter of the Korea-US FTA adopted the structure of DMCA safe harbor provisions. Therefore, it is no coincidence that the structure of Article 102 is very similar to that of EU Directive 2000/31/EC and DMCA. Paragraph (1) sets out specific conditions necessary for safe harbor for different types of Online Service Providers (OSPs). It classifies OSPs into four classes: mere conduits (subparagraph 1), caching (subparagraph 2), hosting (subparagraph 3), and information location tools (subparagraph 4). Paragraph (2) provides another safe harbor, stating that where it is technologically impossible for an OSP to take measures under paragraph (1), the OSP shall not be held liable. However, the court rarely, if ever, accepted a defense based on the provision. Paragraph (3) announces that OSPs do not have any general obligation to monitor. In spite of the provisions, there is much criticism on the court’s rigidness and lack of reasoning in application of safe harbors for intermediaries (see below). It seems the courts do not clearly discern elements of copyright infringement and conditions for enjoying safe harbors. That is, the courts tend to hold intermediaries liable if they do not meet the safe harbor >conditions instead of engaging in an independent analysis of liability.
 
(2) Article 103 sets out a notice and takedown system partially similar to DMCA. If a person claims copyright infringement and demands an OSP to suspend the reproduction or transmission of the works, the OSP should immediately comply and inform the claimant and the alleged infringer of such suspension. The reproducer or transmitter may request restoration by showing that acsuch reproduction or transmission was lawful. The OSP will be exempt from liabilities arising from the claimed copyright infringement by complying with the procedure in Article 103. Before the Copyright Act amendment in 2011, the OSP “may” be exempted or get its liability reduced. “Reproduction and transmission” is the term of art used by the legislators to describe the act of making material available online for downloading. The crucial difference with DMCA is that Korean copyright law requires on-demand takedown not as a requirement for qualifying for the safe harbor but as an unconditional requirement. The OSP cannot choose to deviate from the notice and takedown procedure.
 
(3) According to Article 103-3, a right holder may request an OSP for information necessary to take civil or criminal legal action against an alleged infringer such as the infringer’s name and address. When the OSP refuses, the person may request the Minister of Culture, Sports and Tourism to issue an order to the OSP. If the OSP does not comply with the Minister’s order to provide the information, the OSP will be imposed of a civil fine not exceeding 10 million won under Article 142(2)1. This was newly introduced to the Copyright Act in 2011.
 
(4Article 104 is a unique provision to regulate special types of OSPs – mainly P2P and web-hard (cyber-lockers) service providers . It is unique and unprecedented in that it imposes direct obligation on the OSPs to implement the necessary measures for filtering out unlawful material. When there is a request by a right holder, those special types of OSPs must implement measures including filtering. The Enforcement Decree of the Copyright Act defines those necessary measures as: 
  1. Technical measures capable of identifying the work, etc. by comparing the title, characteristics of work, etc. (basically, a filtering measure mainly based on the titles and hash values of the works)
  2. Measures of limiting search or transmission to cut off illegal forwarding of work, etc. that came to be recognized pursuant to subparagraph 1 (basically, a keyword based measure that prevents searching of the keywords and uploading of files including the keywords);
  3. Where the illegal forwarder of the relevant work, etc. is identifiable, the dispatch of warning sign wording to the forwarder of the work, etc. requesting for the prohibition of infringement on the copyright. 
Any OSP failing to implement such measures will be imposed of a civil fine not exceeding 30 million won under Article 142(1). Moreover, the OSP may be subject to cancellation or suspension of its business registration under the Telecommunications Business Act (see below). The court has been very strict in allowing the safe harbor of Article 102 to those special types of OSPs (see below). Constitutional complaint was raised, but the Constitutional Court found the provision constitutional (see below).
 
(5) In 2009, the Copyright Act introduced the notorious three-strike (or gradual response) regimeArticle 133-2 and 133-3 prescribe a system where a subscriber, or an online bulletin board, which received more than three warnings is subject to suspension of its account up to six months. The suspension orders to OSPs are made by the Minister of Culture, Sports and tourism, which is an administrative agency. Those failing to abide by the provision – intermediaries - will be imposed of a civil fine not exceeding 10 million won under Article 142(2)4 and 5. This provision is on the brink of infringing on constitutional rights of the citizens as it may amount to an administrative censorship where no court review is involved.]
 
Telecommunications Business Act, last amended Act No. 12761, October 15, 2014 (English Version)
 
[(1) According to Article 27(2)6, a value-added telecommunications service provider of special type (the special types of OSPs such as P2P or web-hard service providers under Article 104 of the Copyright Act) which has been imposed the fine under Article 142(1) of the Copyright Act for more than three times may have its registration cancelled or its business suspended. “Value-added telecommunication service providers” is the term of art that describes all online hosts of applications and contents.
 
(2) The amendment by Act no. 12761 on 15 October 2014, which came into force on April 16, 2015, newly included Article 22-3 which compels those special types OSPs to adopt technical measures prescribed by Presidential Decree to prevent circulation of obscene materials. Those OSPs in violation of Article 22-3 will be punished by a civil fine not exceeding 20 million won under Article 104(3)1and its registration may be cancelled or its business suspended upon a request from the Korea Communications Commission (KCC) (Article 27(2)3-2). The Presidential Decree, the Enforcement Decree of the Telecommunications Business Act, was drafted by the KCC and came into force on the same day as the Act. As predicted, the Enforcement Decree lays out technical measures very similar to the corresponding provisions under the Presidential Decree of the Copyright Act, such as DB based filtering and keywords bans. The law basically treats obscene materials and copyrighted works the same. However, unlike copyrighted works, there is no clear standard on obscenity and there is yet no automatic, computerized process that perfectly filters obscene contents – that means the OSPs need to check all contents manually. The law imposes general monitoring obligation on those special types of OSPs which is technically impossible to abide by.]
 
 
[(1Article 18 establishes the Korea Communications Standards Commission (KCSC) consisting of nine members, in addition to the Korea Communications Commission KCC. 
 
(2) Under Article 21 subparagraph 3 and 4, KCSC shall deliberate on matters falling under Article 44-7 of ICNA (defamation, etc., see below), and also deliberate and issue correction requests on information prescribed by the Presidential Decree “as necessary for nurturing sound communications ethics.” The “sound communications ethics” language in Article 21 subparagraph 4 was challenged in the Constitutional Court for its vagueness, but the Court held it constitutional (24-1(A) KCCR 25, 2011Hun-Ga13, February 24, 2013), stating that its scope can be narrowed to the information to be restricted under Articles 44-2 and 44-7 of ICNA  . According to Article 8 of the Presidential Decree of KCCA, correction requests include deletion or blocking of information, suspension or cancellation of a user’s account, and other necessary measures such as labelling information as harmful to juveniles. If an intermediary does not follow KCSC’s correction request, KCSC may request KCC to order the intermediary to comply. The intermediary or the poster may file an objection to KCSC within 15 days from receiving the correction request. KCSC reviews the objection to its own request and its decision cannot be challenged.
 
(3) Article 24 requires KCSC to enact communications deliberation standards to deliberate on Article 21 subparagraph 3 and 4, and according to Article 25(1)2, when KCSC finds that the content of communication violates the standards, KCSC may determine what sanctions under Article 44-7 of ICNA to be imposed upon intermediaries. When KCSC makes the determination it must immediately request KCC to make an order upon it and KCC must follow the request.
 
(4) If an intermediary does not comply with KCC’s order, it will be punished under Article 73 subparagraph 5 of ICNA (see below). In practice, instead of going through all the due process necessary in issuing the sanctions under Article 21 subparagraph 3, KCSC exclusively uses correction requests under Article 21 subparagraph 4 which have been dutifully complied by the intermediaries although there’s no penal provision for not following KCSC’s correction requests. Objection to a correction request is very scarcely filed (less than 0.01%). With the infinitesimal objection rate, the total number of blocking or removal of information reached 104,400 in 2013.]
 
 
[(1) Article 2 subparagraph 1 defines “children or juveniles” as “persons under 19 years of age” and “child or juvenile pornography” as “depiction of children or juveniles, or persons or representations that can be perceived evidently as children or juveniles” doing sexual act. 
 
(2) Article 17 (Obligations of Online Service Providers) imposes obligations regarding child pornography on OSPs as follows:
  1. Any online service provider who fails to take measures prescribed by Presidential Decree to detect child or juvenile pornography in the information and communications network managed by himself/herself or who fails to immediately delete the detected pornography and take technical measures to prevent or block transmission thereof, shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 20 million won: Provided, That this shall not apply where the online service provider has not been negligent in paying due attention to detect the child or juvenile pornography in the information and communications network or where substantial technical difficulty exists even though he/she has tried to prevent or block the transmission of the detected child or juvenile pornography.
  2. Online service providers of special type under Article 104 of the Copyright Act shall indicate words of warning, as prescribed by Presidential Decree, on the relevant screen or transmission program, clearly stating that a person who produces, distributes or possesses any child or juvenile pornography may be subject to punishment where their users search, upload or download the works stored at their computers, etc. (OSPs in violation of Article 17(2) will be punished by a civil fine not exceeding 30 million won according to Article 67(1).)
 
(3) The Presidential Decree provides two measures to detect child pornography. One is a notification system by the users, and another one is a measure which can detect child pornography upon its technical features. The problem is that it is illegal to establish a child pornography database in Korea because Article 11(4) punishes possession of child pornography while the DB is required to extract the technical features. Also, people who either willfully or accidently downloaded child pornography are equally punished for possession in Korea.]
 
Act on the Consumer Protection in Electronic Commerce, Etc., last amended by Act No. 11461, June 1, 2012 (English Version)
 
[(1) Article 2 subparagraph 4 defines “mail order brokerage” as “the act of intermediating mail order between both parties to a transaction by allowing the use of a cybermall (referring to a virtual shopping mall established to transact goods, etc. by using computers, etc. and information communications facilities), or by other methods prescribed by Ordinance of the Prime Minister.” For example, Korea’s largest online shopping mall Gmarket owned by eBay Korea is a mail order broker according to the definition above. 
 
(2) According to Article 20 and 20-2, mail order brokers should inform consumers that they are not a party to a mail order, or they will be jointly liable if the seller caused financial damages to customers. Moreover, the brokers should make information about the sellers available to the consumers, or they will be jointly liable if the information was not available or incorrect. 
 
(3) The Fair Trade Commission (FTC) has the power to impose correction orders when the brokers are in violation of Article 20 and 20-2 under Article 32(1)1. FTC can also suspend the business (Article 32(4)) or impose penalties instead (Article 34).]
 
 
[(1Article 44-2(1) and (2) provide that, when a person requests certain information to be deleted as it infringes upon the person’s rights, the service provider “shall” immediately delete, temporarily block up to 30 days (“temporary measure”), or take any other necessary measure on the information.  Always unsure of whether the information is rights-infringing or not, the provision has incentivized the service provider into erring on the side of deleting, often by deleting lawful information.
 
On top of that, Paragraph (4) states that “if a dispute resolution is anticipated or if the service provider is not sure of the rights-infringing nature of the information”, it “may” take a temporary measure instead of a permanent measure. According to a Constitutional Court in 2012 (2010Hun-ma88), the total effect of these provisions means that the takedown obligation arises not just when the information is infringing another’s rights but whenever a supposed victim requests takedown with certification to that effect.  In other words, when the unlawfulness of the information is in doubt as in Article 44-2(4), the service provider “may” take a less drastic, temporary measure but that is the minimum it must do whenever there is such request. Yet, the Constitutional Court found such provisions constitutional, citing the amplified danger of speech going online.  Moreover, there is no procedure to request restoration of deleted or blocked information available to the poster, unlike the U.S.’ DMCA or the current Copyright Act of the country.
 
(2) Article 44-5 is another safe harbor that exempts from identity theft liability those public institutions implementing real-name identification system for their online bulletin boards.
 
(3) According to Article 44-6, a person may file a claim with the defamation dispute conciliation division under Article 44-10 to require service providers to furnish information about the alleged offender if the conciliation division decides so after deliberation.
 
(4) Article 44-7 sets out the power of Korea Communications Commission (KCC) to order service providers to reject, suspend, or restrict processing of illegal information ranging from obscene or defamatory information to information aiming at, aiding, or abetting any crime. KCC should provide the intermediaries and users opportunities to submit opinions unless there are certain reasons not to do so. Article 73 subparagraph 5 states that a service provider failed to perform KCC’s order shall be punished by imprisonment not more than two years or a fine not exceeding 20 million won. Article 44-7 together with the penal provision gives KCC, an administrative agency, absolute power to censor almost any information on the Internet as the scope of illegal information is very broad.]
 
Public Official Election Act, last amended by Act No. 11071, November 7, 2011 (English Version)
 
[(1) Article 82-4 is titled “Election Campaigns by Utilizing Information and Communications Networks.” According to paragraph (3), when the election commission of each level or any candidate has found any information in violation of the Public Official Election Act on Internet, it may request intermediaries to reject, suspend, or restrict processing of the information. Intermediaries should promptly comply with the request, and the intermediaries or posters of the information may file objection to the election commission within three days from the receipt of the request.
 
(2) If an intermediary does not comply with the request once, it shall be imposed of a civil fine not exceeding three million won pursuant to Article 261(6)4. If it does not comply more than once, it shall be punished by imprisonment not more than two years or a fine not exceeding four million won pursuant to item (e) of Article 256(3)1.]
 

Administrative Regulations

Regulatory Entity: Korea Communications Commission (KCC)
 
[Established under the Act on the Establishment and Operation of Korea Communications Commission (KCCA), the KCC implements deletion or blocking orders according to the request and standards of the Korea Communications Standards Commission (see above and below).]
 
Regulatory Entity: Korea Communications Standards Commission (KCSC)
 
[Established under the Act on the Establishment and Operation of Korea Communications Commission (KCCA) in addition to the KCC, the KCSC, consisting of nine members, shall deliberate on matters falling under Article 44-7 of ICNA (see above), and deliberate and issue correction requests on information prescribed by the Presidential Decree “as necessary for nurturing sound communications ethics,” and enact related communications deliberation standards (see above.]

BILLS AND PENDING PROPOSALS

[There are currently amendments to the "Act on Promotion of Information and Communications Network Utilization and Information Protection, etc." under discussion.] 

DECISIONS

Superior Courts 

Constitutional Court
[Note: the Constitutional Court of Korea provides English translation for some decisions. The decisions can be searched here.]
 
[constitution, unlawful information, freedom of expression, takedown system]
 
[This is a decision on the notice and takedown system under Article 44-2 of ICNA (see above). The Constitutional Court found that the provisions do not infringe upon the freedom of expression under Article 21 of the Constitution because, although the provision, by requiring the service provider to take some actions on all takedown requests, has the danger of abating lawful information, the public interest in taking down unlawful information prevails.]
 
23-1(A) KCCR 53, 2009Hun-Ba13, 52, 110 (consolidated), February 24, 2011
[constitution, article 104, copyright act, special OSPs]
 
[Majority of the Constitutional Court found Article 104 of the Copyright Act constitutional. However, two Justices dissented, stating that it is unconstitutional to delegate the authority to determine the notion of special types of OSPs to the announcement of the Minister of Culture, Sports and Tourism.]
 
Supreme Court
[Note: the Supreme Court of Korea provides English translation for some decisions. The decisions can be can be found at the Supreme Court’s English website.]
 
Supreme Court Decision 2011Do1435, September 26, 2013
[copyright, safe harbor, article 102 copyright act, criminal liability, technically impossible]
 
[(1) In this decision, the Supreme Court clarified that the safe harbor under Article 102 of the Copyright Act (before it was amended by Act no. 8852 on 29 February 2008) also applies to criminal liabilities.
 
(2) The Supreme Court further explained the meaning of being “technically impossible” under Article 102(2). In this case, the defendants implemented filtering measures utilizing hash values and banned keyword lists. The Supreme Court found that those measures were not state of the art measures available and didn’t even work properly, and therefore the defendants cannot resort to the safe harbor under Article 102(2).]
 
Supreme Court Decision 2010Ma817, December 4, 2012
 
[(1) This is an important decision regarding trade of counterfeit goods on online shopping malls, so called open-markets, where the service providers do not sell goods but intermediate between sellers and customers and receive commissions. The plaintiff was Adidas and the defendant was eBay Korea. Adidas filed an injunction against eBay for the sale of counterfeit goods on Gmarket and Auction, the largest and top grossing open-market in Korea. Adidas alleged that eBay has a duty under Article 44(2) of ICNA (note: This provision declaratively states the service provider’s duty to make efforts to reduce rights-violating material on its services, and is not to be confused with Article 44-2 that imposes on-demand takedown obligations.) to prevent circulation of counterfeits and demanded eBay to take several measures including authenticity check of goods and counterfeit monitoring and filtering system. Adidas also argued that the notice and take down system and other measures eBay already put in practice were not sufficient. The Supreme Court found in favor of the defendant and dismissed the claim..
 
(2) The Supreme Court held that “any information that infringes upon other’s rights through invasion of privacy, defamation, etc.” does not include information infringing upon other’s trademarks and therefore the provision cannot be construed to impose alleged duty on service providers.
 
(3) This decision is significant in that Article 44-2, the on-demand takedown provision, also applies only to “any information that infringes upon other’s rights through invasion of privacy, defamation, etc.”, and therefore this Supreme Court decision can be said to have narrowed the scope of Article 44-2 to defamation and invasion of privacy only.]
 
Supreme Court Decision 2009Da4343, March 11, 2010
[copyright, hosting provider, search engine, Yahoo, copyright infringement, aiding]
 
[(1) This decision applied the rule of 2008Da53812 (see below), the leading case on intermediary liability, on copyright infringement. The defendant was Yahoo Korea and the plaintiff sued Yahoo Korea for copyright infringement. The issue here was whether Yahoo Korea was liable for copyright infringing materials posted by subscribers on its website.  
 
(2) The Supreme Court held in favor of the defendant. According to the Supreme Court, OSPs cannot be held liable for merely allowing subscribers to post copyright infringing materials and enabling the materials to be searched on their portals. OSPs are only liable for aiding the infringement for not taking necessary measures under three conditions: (1) illegality of the copyright infringing material is clear; (2) the OSP either received a notice from the right holder or was clearly aware of the infringement; and (3) it is technically and financially possible to control the material.]
 
Supreme Court en banc Decision 2008Da53812, April 16, 2009 (English Version)
[defamation, hosting provider, web portal, user posts]
 
[(1) This is a much criticized Supreme Court decision on intermediary liability for defamatory content. There were two contradictory Supreme Court decisions (2001Da36801 and 2002Da72194, see below) prior to this en banc decision on the same issue.
 
(2) The Supreme Court held web portal sites Naver, Daum, SK Communications, and Yahoo Korea liable for the defamation of the plaintiff whom the user postings there accused of deserting a girlfriend upon the second pregnancy after he talked her into aborting the first where the girlfriend then committed a suicide. The court upheld judgments of 10 million won, 7 million won, 8 million won, and 5 million won, respectively, against these services.
 
(3) Specifically, the court held that, barring special circumstances, (a) the intermediary shall be liable for illegal contents to the same extent as a news agency and therefore shall be liable when (1) the illegality of the content is clear; (2) the provider was aware of the content; and (3) it is technically and financially possible to control the contents. (b) On top of the duty to take down such contents immediately, the intermediary has a duty to block similar postings later on. (c) The Court will find the provider’s requisite awareness under (2) above:
 
  1. when the victim has requested specifically and individually for the takedown of the content;
  2. when, even without such request, the provider was concretely aware of how and why the content was posted OR
  3. when, even without request, it was apparently clear that the provider could have been aware of that content.
 
(4) The end result is that the intermediary will be absolutely liable for a posting later found to be “clearly” defamatory if “it was apparently clear that the provider could have been aware of that content” even if the victim did not notify the intermediary of the existence of the content. The Court decision may have been inspired by Article 44 of ICNA which was in force at the time the postings were up, but the fact is that, even without Article 44/44-2 in full motion, the Court was already ready to impose a publisher-like liability on the intermediary and a monitoring obligation.]
 
Supreme Court Decision 2005Do872, December 14, 2007
[copyright, hosting provider, p2p file sharing, linking, copyright infringement, aiding, civil liabilit, criminal liability]
 
[(1) This case is significant in that the Supreme Court found p2p file sharing software “Soribada” – Korean Napster - liable for copyright infringement by aiding its subscribers’ crime.
 
(2) Following its reasoning in 2005Da11626 (see below), the Supreme Court did not differentiate civil liability and criminal liability.
 
(3) The Supreme Court held that all direct and indirect acts that facilitate copyright infringement are considered aiding. Moreover, it is sufficent that the aider was reckless and it is not required that the aider was specifically conscious of the date or place of infringement, the object copied, or the identity of the principal.]
 
Supreme Court Decision 2005Da11626, January 25, 2007 (English Version)
[copyright, hosting provider, p2p file sharing, Soribada, aiding, abetting, civil liability, criminal liability]
 
[(1) This decision affirmed the decision of appellate court (2003Na21140) which held an intermediary – “Soribada” - liable for aiding copyright infringement for the first time. In Korea, aiding and abetting have different meanings in civil liability and criminal liability. Article 760 of the Civil Act on joint tort treats aider and abettor the same. On the contrary, punishment for aiding a crime and punishment for abetting a crime are different: the latter is punished the same with the principal (Article 31(1) of the Criminal Act), while the former gets its punishment reduced (Article 32 of the Criminal Act).
 
(2) The Court stated that acts assisting infringement of the right to reproduce refers to all direct and indirect acts that facilitate the violation of the right held by other parties, and it is possible to assist the infringement recklessly as well as negligently. "Soribada" is accountable for aiding and abetting since they had dolus eventualis of, or at least could have expected, the circumstances by which the service would enable users to violate copyright. Yet, they developed and distributed "Soribada" program free of charge, operated the server, provided users with connection information of other users, and facilitated the infringement by letting the users share and copy MPEG-1 Audio Layer-3 (MP3) files converted from music CDs by use of the Peer-to-Peer (P2P) method.]
 
Supreme Court Decision 2003Do4128, April 28, 2006 (English Version)
[obsenity, hosting provider, web portal, aiding and abetting, duty of deletion]
 
[(1) This case concerns obscene materials. The defendants were employees of an Internet portal in charge of the portal’s “entertainment channel.” There were obscene cartoons on the cartoon section of the entertainment channel.
 
(2) The Supreme Court held the defendant liable for not deleting the cartoons and thus aiding the violation of Article 48-2 of the former Framework Act on Telecommunications (amended by Act No. 6360 on January 16, 2001) which punished distribution, sale, rental or exhibition of obscene materials on the Internet. The issue in this case was whether the defendants had a duty to delete the cartoons. The court affirmed that such duty existed and that the defendants aided the crime by nonfeasance.]
 
Supreme Court Decision 2002Da72194, June 27, 2003 [English Version]
[defamation, hosting provider, pre-takedown liability, actual knowledge]
 
[(1) The Court held that, an intermediary, even if it knew or had reason to know of the defamatory material for 52 days, should not be held responsible unless a comprehensive analysis of the following factors point to such responsibility:  (i) the posting’s purpose, content, duration and method, (ii) the damages it has caused, (iii) the relationship between the speaker and the injury-claimant, (iv) the claimant’s attitude including whether rebuttal or takedown was requested, (v) the size and nature of the site posted, (vi) the degree of for-profit nature of the site, (vii) when the operator knew or could have known the posting’s content, and (viii) the technological and pecuniary difficulty in taking down, etc. Having said so, the Supreme Court reversed the lower court that imposed the liability for pre-takedown exposure.  
 
(2) The Supreme Court’s rather terse ruling sounds very generous, refusing to impose liability even upon knowledge of some indiscretion, especially when it was before the exemption provision was added to Article 44-2.  However, the ruling stands on the narrow fact that the intermediary here did comply immediately with the takedown request.]
 
Supreme Court Decision 2001Da36801, September 7, 2001
[defamation, hosting provider, bulletin board, takedown]
 
[The Supreme Court held an electronic bulletin board provider liable for refusing, even upon demands both by the injury claimant and a government censorship body, to takedown postings deprecating a pop singer’s fan for 5-6 months, stating the intermediary had “a duty to take adequate measures when it knew or had reason to know of a defamatory posting.”]
 

Lower Courts

Seoul High Court Decision 2010Na35260, October 13, 2010
 
[(1) In February 2009, Woo Jong-Hyun (surname Woo) recorded his 5-year old daughter casually singing part of the popular singer Sondambi’s major hit I am Crazy unaccompanied and imitating the singer’s gestures and posted the video clip on his blog opened at the country’s major portal Naver, operated by NHN. June of that year, the Korean Music Copyright Association (KOMCA) issued about 16,000 takedown notices to Naver, including the one on Woo’s video clip. Naver immediately took down the video clip and rejected Woo’s restoration notice and the video clip has been down ever since.
 
(2) Woo filed suit against KOMCA and NHN for damages under Article 103(6) of the Copyright Act: (6)  Any person who demands, without legitimate authority, the suspension or resumption of the reproduction or transmission of relevant works, etc. under paragraphs (1) and (3), shall make a compensation for any losses incurred thereby.
 
(3) Korean high court affirmed a lower court ruling that the 53 seconds long video clip constitutes a fair use, and ordered KOMCA to pay the plaintiff damages for unjustly requesting a takedown under the notice-and-takedown system. The judgment was not appealed and have now become final.]

OTHER RESOURCES

Statutes of the Republic of Korea (English), http://elaw.klri.re.kr/eng_service/main.do
The Supreme Court of Korea (English), http://eng.scourt.go.kr/eng/main/Main.work
The Constitutional Court of Korea (English), http://english.ccourt.go.kr/cckhome/eng/index.do
The Korea Communications Standard Commission (English), http://www.kocsc.or.kr/eng/Message.php
The Korea Copyright Commission (English), http://www.copyright.or.kr/eng
Korea Internet Self-governance Organization: KISO (Korean), http://www.kiso.or.kr

CONTRIBUTORS

Kyungsin Park
Professor, Korea University Law School; Director, Open Net 
Email: kyungsinpark at korea.ac.kr
 
Kelly Kim
General Counsel, Open Net
Email: 8kkim8 at gmail.com

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