The following presentation was given on February 24 at the 2017 Australian Digital Alliance Copyright Forum.  The slides are here.

Thank you for inviting me to the ADA Copyright Forum. I am more than delighted to be able to introduce the Korean experience on fair use. Frankly speaking, it is risky business to introduce fair use doctrine in a civil law country like Korea. Since Korea is a risk-taking country rather than a risk-averse country, Korea decided to introduce the fair use doctrine six years ago. We did so because the fair use doctrine can drive innovations for the industry, for users or works, and for creators in a fast changing internet environment. Actually, for more than thirty years, Korea has strengthened copyright for the benefit of creators. Many scholars including myself have raised serious questions about what happened to users’ rights under the Copyright Act of Korea. During the course of debates and discussion to strike a good balance between apparently conflicting interests of creators and users, Korea has faced two options. One option was to expand the scope of exceptions. Another option was to introduce a general clause on fair use. Korea opted for the second choice in 2011. Now, let me take a brief look at some cases.

There is a detailed list of exceptions in the Copyright Act of Korea. Among them, the quotation exception has been the most frequently used. Article 28 of the Copyright Act provides that it is a legitimate use to quote part of a copyrighted work already made public for news reporting, criticism, education, research, etc., in compliance with the fair practices within the reasonable extent. The purpose of quotation and the reasonable extent of quotation have both been interpreted very broadly by courts. For example, when an internet user made his own video of his daughter singing and dancing, with a song as its background music, and uploaded the video onto an internet portal site, the Seoul High Court held that making and uploading the video was a legitimate quotation of the song. Even though the song was incorporated into the video without authorization of copyright owner, the Court found that the song was used for a non-commercial purpose, with poor sound quality, and thus that the quotation exception was available (Seoul High Court Decision 2010na35260 decided on Oct. 13, 2010).

In another case, thumbnail images made by an internet search engine became available to internet users. The Supreme Court held that it was a legitimate quotation for Internet search engines, which were commercial services for profit, to provide their users with thumbnail images in the results of the users’ image search (Supreme Court Decision 2005Do7793, 9 February 2006; Supreme Court Decision 2009Da4343, 11 March 2010).

There are many other cases where quotation exceptions were applicable. In a series of cases, the availability of the quotation exception has been held as being dependent on several factors such as the purpose of quotation, the nature of the quoted work, the content and amount of the quoted portion, the interactive relationship between the quoted and quoting works, the general notion of readers, and the possibility of displacement of the market demand for the original work (Supreme Court Decision 2012Do10777, 26 August 2014). Those factors under the quotation exception in Korea are clearly reminiscent of factors under the fair use doctrine in the US. Viewed this way, it seems there is no apparent difference between the quotation exception and fair use doctrine.

However, it is clear that civil law country judges like in those in Korea have been uncomfortable and hesitant to expand the quotation exception too far. That is why the quotation exception was denied in many other, apparently borderline, cases. For example, it is not a quotation to reproduce an academic article without authorization and submit it to the Food and Drug Agency (KFDA ). When the complaint of copyright infringement was raised to prevent a competitor from making a similar drug based on the same functional ingredient called “Lyprinol,” the Supreme Court held that the defendant could not rely on the quotation exception, because it had copied and submitted a journal article as part of a for-profit use (Supreme Court Decision 2011do5835 decided on Feb. 15, 2013)

Given the fact that the quotation exception is not enough to strike a good balance between creators and users’ interests, Korea eventually decided to introduce a general clause on fair use in the Copyright Act of Korea. Where a person does not unduly harm an author’s legitimate profits, does not cause a conflict with the usual method of using works, etc., he/she may use such works under the fair use clause, i.e., Article 35ter of the amended Act. In determining whether a use falls under this paragraph, the following factors shall be considered under the amended Act:

  1. Purposes and characters of use, such as for-profit or non-profit;
  2. Types and uses of works, etc.;
  3. Proportions of used parts in the entire works, etc. and their importance;
  4. Impact of the use of works, etc. on the current market or value or potential market or value of such works, etc.

There have been several cases where the new fair use clause justified legitimate uses. For example, the Suwon District Court held it was a fair use to reproduce an academic article regarding an ingredient called “Rosehip” from the Internet and submit it to the  Food and Drug Agency (KFDA ). The factual background of the Rosehip case was the same as the Lyprinol case. Hyben-Vital of Denmark has produced rosehip, an ingredient in skincare that has an anti-inflammatory effect. A journal article was written and published in a rheumatology journal by three doctors, the study of which was requested by Hyben-Vital. A Korean company which planned to import a rosehip ingredient from Chile downloaded the whole article from the Internet and submitted it to KFDA for a functional ingredient approval. A formal complaint was filed against the Korean company. In finding in favor of the defendant, the Suwon district court considered the fair use clause under Article 35ter and the public nature of the academic article. Also, the Court held that the act of obtaining marketing approval is not for-profit. Unlike the Lyprinol court, the Rosehip court narrowly interpreted “for profit purpose” as referring to “for purposes of obtaining illegal profit paid directly from infringing act.”(Suwon District Court decision 2016GoJung432 decided on August 18, 2016)

For the past six years since the Copyright Act was amended to introduce a general clause on fair use, Korea has witnessed several cases where the quotation exception is not available, but where the new fair use clause is available. Now that fair use doctrine has been formally introduced in the statute, Korea faces another serious question: how to minimize uncertainly and unpredictability under the fair use doctrine. I hope you and I can get together again in the future to figure out some guidelines to make fair use more predictable

Thank you.