How did fair use get into the Korean Copyright Act?

As I explained in my previous blog post, the open-ended fair use clause in the Korean Copyright Act (“KCA”) was introduced in 2011 in the course of implementing the Korea-US FTA (“KORUS”). Yet, this does not mean that KORUS mandates legislation of fair use. Instead, KORUS restricts the scope of fair use. Footnote 11 of KORUS §18.4:1 mentions fair use, but it’s purpose is to make clear that any limitation or exception to the reproduction right to temporary storage is restricted to the controversial three-step test, and even when Korea or the US introduces or maintains fair use, the three-step test prevails.

ARTICLE 18.4: COPYRIGHT AND RELATED RIGHTS

1. Each Party shall provide7 that authors, performers, and producers of phonograms8 have the right to authorize or prohibit9 all reproductions of their works, performances,10 and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).11 

[Footnote 11] Each Party shall confine limitations or exceptions to the rights described in paragraph 1 to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder. For greater certainty, each Party may adopt or maintain limitations or exceptions to the rights described in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in the previous sentence. 

Therefore, it is fair to say that the fair use clause of KORUS is a sort of by-product produced in a way that Korean government blinds dark sides of the overly expansive KORUS protection of copyright in temporary storage.

Obligations on the temporary storage was highly controversial during the negotiation of KORUS. The Korean negotiators strongly opposed the US proposal for the temporary storage and the disagreement was not solved until the final official round of talk (March 2007). The Ministry of Culture, which co-chaired, along with the Trade Ministry, the Korean IP negotiation division, was very stubborn in the opposition. When the 1st round of talk ended in June 2006, the Ministry of Culture decided not to accept the US proposal as they viewed that the temporary storage clause would “weaken the promotion of (fair) use of copyrighted works and undermine access to information”. Further, the Trade Ministry reported to the National Assembly of the outcome of the 2nd round negotiation (July 2006) that the Korean negotiators opposed the introduction of temporary storage because the problem of temporary storage could be indirectly addressed by in combination of the permanent reproduction right, the right to communication to the public and the protection of technological protection measures. However, the Trade Minister, having controlled the whole process of Korean negotiation, changed its position later and urged the copyright officials to accept the US proposal on the temporary  storage. A negotiators’ interim document revealed that the copyright officials asked their Minister to meet in person with and persuade the Trade Minister to stop pushing them on the issue. For the purpose of preparing defensive strategies, the Minister of Culture and the National Copyright Commission held a consultation meeting with copyright experts, industries and activists, to which I was invited, ended up with failure.   

KORUS Negotiation History

The negotiation history of KORUS supports my observation on how fair use got into the law. I obtained negotiation documents of KORUS IPR Chapter after three-years long litigation against the Korean Trade Minister.

The fair use footnote of KORUS text was not included in the first US proposal (26 May 2006 text). Nor in consolidated texts of 21 September 2006 and 21 March 2007.

 

Consolidated texts from 21 September 2006 to 21 March 2007

ARTICLE XX.4: COPYRIGHT AND RELATED RIGHTS

1. Each Party shall provide7 that authors, performers, and producers of phonograms8 have the right to authorize or prohibit9 [US: all] reproductions of their works, performances, and phonograms,10 in any manner or form[ROK: 11] [US: , permanent or temporary (including temporary storage in electronic form)]. 

7 The Parties reaffirm that it is a matter for each Party’s law to prescribe that works and phonograms shall not be protected by copyright unless they have been fixed in some material form.
8 References to authors, performers, and producers of phonograms in this Chapter refer also to any successors in title.
9 With respect to copyrights and related rights in this Chapter, the right to authorize or prohibit refers to exclusive rights.
10 With respect to copyright and related rights in this Chapter, a performance means a performance fixed in a phonogram unless otherwise specified.
11 For the purpose of this Chapter, the reproduction right, and the exceptions permitted hereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article XX.4.1.
Consolidated text of 21 September 2006
 
ARTICLE XX.4: COPYRIGHT [US: AND RELATED RIGHTS]

1. (a) [ROK: Each Party shall provide to authors the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.]
(b) [ROK: The rights granted to the author in accordance with the paragraph (a) shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed.]

2. Each Party shall provide[ROK: ] that authors [US: , performers, and producers of phonograms] have the right to authorize or prohibit [US: all] reproductions of their works, [US: performances, and phonograms,] in any manner or form[ROK: ] [US: , permanent or temporary (including temporary storage in electronic form)]. 

A package deal, which was very likely to be made in March 2007 after the official round of KORUS negotiation ended, contains fair use footnote:

Korea concedes – Temporary Copies : accept the temporary copies concept with an exception including a reference on “fair use” (XX.4.1)

Hyun-cheol Kim who was a KORUS negotiator and a chief researcher of the Korea Copyright Commission also said, when he prepared for a copyright act amending bill to implement KORUS in 2007, that the fair use footnote was introduced due to the concerns of side effects of reinforcing the reproduction right. (p. 73 of this document). In the meantime, the latest treatise on copyright and FTAs, which was edited and published in 2019 by the Ministry of Culture does not mention the history, either (see https://www.mcst.go.kr/kor/s_policy/dept/deptView.jsp?pSeq=1283&pDataCD=0417000000&pType=04).

<Also posted at http://infojustice.org/archives/42342>