As Korea Implements Fair Use, Two Cases Offer Precedent for Flexible Copyright Exceptions and Limitations

In 2012, the Korean Copyright Act was amended to include the general provision of a fair use for the effectuation of the U.S. – Korea FTA.  The newly introduced article 35-3 (Fair Use of Copyrighted Material)[1] states that “the copyrighted work may be used, among other things, for reporting, criticism, education, and research.” (emphasis added). Article 35-3.2 lists factors to be used to determine if a use is fair, which are very similar to the fair use factors listed in section 107 of the U.S. Copyright Act. The Korean fair use provision does not have a precedent yet, but there are some case laws concerning Article 28 which could have an impact on the fair use analysis.

Article 28 of Korean Copyright Act (Quotations from Work Made Public)[2] has been used to recognize exceptions and limitations to Copyright. It permits quotations from work made public for the purposes of “news reporting, criticism, education, and research, etc. . . .” (emphasis added). It is notable that both Articles 28 and Article 35-3 were written as open-ended,  non-exclusive clauses.

There are at least two Korean cases concerning Article 28 which could have an impact on the fair use analysis. The first concerns a search engine that provides thumbnail images. The Supreme Court of Korea held that the use of images were within the meaning of fair practices under Article 28.[3]  The Court found that, to determine whether a particular use is compatible with fair practices, courts should consider various factors including the purpose of the use, the type of the copyrighted work, the content and the amount of the portion used, and whether the copyrighted work could replace the demand of the original work.[4]

The second case is about user generated content (“UGC”). The plaintiff uploaded a recording of his 5 years old daughter singing and dancing of the popular Korean song ‘Crazy,’ by Son Dam Bi, to his blog.  The internet blog provider, defendant, stopped the transmission of the UGC per Korea Music Copyright Association’s request, another defendant.  The court held that the plaintiff should be allowed to upload the content pursuant to Article 28.[5]  By quoting the earlier Supreme Court decision[6], the court found that the purpose of quotation cannot be limited to news reporting, criticism, education, and research. These are a list of some examples of uses, but other uses are permissible.

The Korean courts’ analysis under Article 28 of Korean Copyright Act can be interpreted in a way that the courts recognize the importance of more flexible copyright limitations. I believe that the Korean courts will and should follow the above mentioned precedents for the interpretation of the article 35-3 of Korean Copyright Act, the fair use provision, to provide more flexibility in the field of copyright limitations, which would enable the courts to deal more effectively with the fast development of technologies.

The flexible interpretation is more interesting because South Korea is under a civil law jurisdiction. There is an ongoing debate over whether or not such flexible clauses are antithetical to civil law tradition.[7]  For example, continental-European countries, under the civil law system, provide for a closed list of limitation whereas the Anglo-American copyright system allows for an open-ended fair use system.[8] However, South Korea took an open-ended and flexible approach to its fair use provision, like most of common law countries did.

Therefore, this new South Korean copyright legislation provides a good example that the civil law system is not incapable of dealing effectively with the statutory provision that requires interpretation and application. In fact, as many common law systems today rely on extensive codification, South Korean civil law systems recognize the importance of interpretation as well.