Problems of the Copyright Act as Amended to Implement Free Trade Agreements

Abstract

This article delves into the Copyright Act as amended to implement the Korea-EU and the Korea-U.S. Free Trade Agreements and reveals inconsistency between them and several provisions of FTAs not being reflected into the Copyright Act. Further the U.S. Copyright Act and Criminal Act are reviewed to show how the U.S. fails to take necessary measures to give effect to the provisions of the Korea-U.S. FTA.

Most of the inconsistency between the Korean Copyright Act and FTAs is discovered from provisions for the limitations on the liability of online service providers (OSP). Main reason is because Korea simply imports two different models: the E-Commerce Directive of the European Union; and the DMCA of the U.S.. The conditions that OSP “does not initiate the transmission” and “not receive a financial benefit directly attributable to the infringing activity” under the Korean Copyright Act stem solely from the DMCA, and lead to a conflict with the Korea-EU FTA. Moreover Article 104 of the Korean Copyright Act, which imposes an ex ante filtering measures upon a certain type of OSPs (such as P2P and online file storage service providers), was not revised, even though it directly clashes with Article 10.66 of the Korea-EU FTA, which prohibits a general monitoring obligation upon OSPs. Recently introduced registration requirement for the certain type of OSPs, which also requires the filtering measures of Article 104 of the Korean Copyright Act, is likely to cause a conflict with service and investment chapters of both FTAs.

In addition, elements for an effective notification from copyright holder to OSPs are drafted in different way from the Korea-U.S. FTA and limited court-ordered relief against the qualified OSPs is incorrectly coded in the Korean Copyright Act. FTA provisions that are not mirrored in the Korean Copyright Act include: footnote 29 of Article 18.10:6 of the Korea-U.S. FTA, which rules out the statutory damages against the government and a third party acting with the authorization or consent of the government; Article 10.66 of the Korea-EU FTA, which bans a general obligation on OSPs to monitor; and Article 18.10:30(b)(viii) for elements that court should consider when issuing a relief against the qualified OSPs.

Finally, unlike Korea, the U.S. denies direct applicability of the Korea-U.S. FTA and declares the superiority of its federal laws over the FTA. Therefore the consistency between the U.S. federal laws and the FTA is highly significant. However, the U.S. knowingly maintains its federal laws that are inconsistent with the FTA in that: it is unclear under the U.S. Copyright Act if temporary storage of copyright work is a fixation; requirements for the limited liability of OSPs are different from the FTA; the scope of circumvention tools of technological protection measures is narrower than the FTA; and criminal penalty for counterfeit documentation or packaging is applied under conditions that are not required in the FTA.

This article was published in LAW & TECHNOLOGY Vol. 8, No. 3, 2012 and downloadable (the full text is in Korean)