고려대학교 법과대학 이대희 1 2015-09-08 copyright protection on internet 2009. 7. 3...

고려대학교 법과대학 이대희 1 23年 4月 19日

Copyright Protection on Internet

2009. 7. 3

Dae-Hee LeeKorea University College of Law

[email protected]


Copyright and Digital Environment

● The Traits of Digital Work

- Cheap & Easy to reproduce, modify, publish, and save.

● USA’s White Paper (1995)

● The Measures of International Community

- WIPO: WCT (1996)/ WPPT (1996)

- USA: DMCA (1998)

-EU: Electronic Commerce Directive (2000) /Copyright

Directive (2001)


The Measures of Korea

● Joining the WCT and WPP

● Copyright Law Amendment

1. Approval of Transmission Right (the Right of making available to the

public)

- Copyright Holder (2000)

- Neighboring Copyright Holder (2005)

2. Ban on TPM-Incapacitation(2003)

3. RMI (2003)

4. Exemption from ISP Responsibility (2003)

5. Protection of DB Producer (2003)

6. Newly Establishing the Concept of Digital Voice Transmission (Real-

time Webcasting) (2007)

7. Imposing the Obligation of ISP Filtering (2008)

8. Collecting, Disposing and Deleting the Infringing Copies (2008)

9. Order/Corrective Advice to delete Infringing Copies(2009)


Digital Environment and KORUS FTA

● Settlement in April, 2007

● Primary Contents concerning Digital Environment

1. Approval of Temporary Reproduction

2. Approval of Access Control concerning Technological

Protection Measure

3. Extension of RMI

- From ‘Electronic RMI’ to ‘RMI’

4. 4 Types of ISP Safe Harbor

5. ISP Providing Personal Information on Infringement

Suspects

6. Prohibition of Video Camcordering in a Cinema


Measures of the Court

1. Declaring P2P file-exchange illegal

● Centralized & Decentralized P2P service provider’s aiding and

abetting responsibility was acknowledged(civil law) and they were

convicted of aiding and abetting (criminal law)

●Users’ Infringement of the Right to Reproduce and Transmit was

acknowledged

● Private Copying of users was denied

2. Streaming Service

- Infringement of the Right to Reproduce was acknowledged

- Transmission

3. ISP responsibility

- Aiding and abetting responsibility was acknowledged

4. Search Engines providing Thumbnail picture

- Copyright Infringement responsibility was denied


Measures of the Court(2) 5. Frame Link- Tort was acknowledged

6. Technological Protection Measure

- Producing and distributing Modchip were acknowledged to

infringe Technological Protection Measure

7. Webhard

- User’s movie file downloading is not correspondent to Private

Copying.


TPM (Current Laws and KORUS FTA)

Technological Protection Measure for Access Control to work (X)

Technological Protection Measure to protect Copyright (Y)

Prohibition on Incapacitation(A)

AX: KORUS FTA AY: Computer Program Protection Law of Korea

Prohibition on Trading Tools (Prohibition of Preliminary Act)(B)

BX: KORUS FTA BY: Copyright Law, Computer Program Protection Law


Case on TPM

● Supreme Court 2004 도 2743 - Violation of Computer

Program Protection Law

● Sony Playstation 2 Modchip

● Means to prevent illegally copied game from running and to

carry through regional code

(i) Record and storage an Access Code on a game software in a CD

(ii) Install Boot ROM program in a game machine.

(iii) Block reproduction of Access Code in normal copying method but

only in genuine production process

● Incapacitation of Technological Protection Measure : Mod

chip● Issue- PS2 Modchip is correspondence to the Technological Protection Measure which the Computer Program Protection Law intends to protect?

- The Court says : Yes


Cases on P2P File Sharing

● Centralized & Decentralized network

● Decisions

- CD producers v. Soribada (appeal, 2005.1)(Supreme Court, 2007.1)

- Copyright holders vs. Soribada (appeal, 2005.1)

- Criminal Case of Soribada (Supreme Court, 2007.12)

- CD producers vs. Soribada 3 (Provisional Disposition, 2005.8.29)

- CD producers vs. Soribada 5 (appeal, 2007.10)

● Responsibility of User

- Infringement of the right to reproduce (Private Copying was denied)

- Infringement of the right to transmit

● Responsibility of Service Provider

- Aiding and abetting responsibility on Users’ infringement was

acknowledged


Filtering Requirement

● Article no.104 of Copyright Law

- P2P/ Webhard service provider

- When Copyright holder requests

● Filtering

1. USA’s Grokster case (2006)

- Inducement Test (especially noticeable evidence of intention)

- Attempt to develop Filtering Tools or other mechanisms in order

to decrease infringement using S/W

2. Korean P2P case (Soribada 3) (2005)

- Due to the development of DRM(Digital Rights Management)

technology, it is hard to say accepting Copyright Protection

Technology into P2P File Sharing Services is impossible…


Filtering Requirement Case

● Seoul High Court (2007)

● Infringement of protected rights : Infringement of

the right to reproduce and transmit we re

acknowledged

● Joint Tortfeasor ?

- Central Server involvement X, Filtering Acceptance. No.

● Aiding and abetting responsibility?

- Filtering has not been done properly, Passive Filtering.

Yes(Recognition of the possibility of Infringement)

● Article no.102 Technologically Impossible?

- Active Filtering available

- Technologically possible to prevent and stop infringement


Case on Webhard (1)

● Web Storage Service: An Internet file-managing system

which enables online content-file sharing. It allows users to

upload, read, edit, download online contents and others to

download the files through the internet in anywhere the

Internet is available by securing storage, which is space to

save online contents files.

● Saving type vs. Sharing type


Case on Webhard (2)

1. User : Downloading from a Webhard for personal

purpose

- Act of downloading movie files which is uploaded on Web

Storage to enable public download and saving it on a personal

hard disk or on a private Web-storage.

- Court: Denies Private Copying when user was aware of the

possibility of the copied object’s being an illegal file which

infringes Copyright

2. User: Uploading files on Webhard

- Court: Infringement of the Right to Reproduce and Transmit


Case on Webhard (3)

3. Web Storage Service Provider

(1) Civil Law

- Users’ aiding and abetting responsibility in infringing

Copyright(Right to Reproduce and Transmit) was

acknowledged

(2) Criminal Law

- Co-offending with users was denied

- Sole Offending was denied

- Convicted of Aider and Abettor


Deleting and Closing BBS● Promulgated on April 22th, 2009 (effective from 3 months

after promulgation)

● Article no.133-2 (Deletion order of Infringed Copies and

other)

1. Warning to infringer and Order to delete or suspend

Infringed Copies

- Subject of the Order : the Minister of Culture, Sports and Tourism

- Transmission of Infringed Copies/information and

program/information incapacitating Technological Protection

Measure

- Deliberation of Copyright Commission

- (i) Warning about who reproduce ㆍ transmit Infringed Copies

and others (ii) Deletion of Infringed Copies or Suspension of

transmission


Deleting and Closing BBS2. Order to suspend account of Infringer

- When one transmit Infringed Copies and others who already

received more than three warnings due to reproducing ㆍ

transmitting Infringed Copies and others

- Deliberation of Copyright Commission

- Order to OPS to suspend access account of who reproduced ㆍ

transmitted (suspension duration is less than 6 months)

- Access account : Exclude accounts for e-mail only and includes

other accounts the OSP provided

3. OSP notice to the suspended account owner who

reproduced ㆍ transmitted (7 days before suspension)


Deleting and Closing BBS4. Suspension Order to whole or a part of Bulletin Board Service

- Object: Among the bulletin boards on the OSP network, board given more than

three Orders to delete or suspend Infringed Copies

* Board: Among the Boards of ‘Network Law’, boards providing commercial benefit

or convenience

* Board of ‘Network Law’ : Irrelevant to the name, a computer program or

technological equipment which enables user to publish signal ㆍ letters ㆍ voice

ㆍ sound ㆍ picture ㆍ video and others using network in order to open to the

public (2)

- Requisites: Considering the form of the board, the amount of Infringed Copies on

it and property of it, the board should be considered to harm the order including

Copyright and others.

- Procedure: Order to OSP after deliberation of Copyright Commission

- Content of Order: Suspension of whole or a part of Bulletin Board Service

- Duration: Less than 6 months


Deleting and Closing BBS5. OSP’s notice for suspended board

- From 10 days before suspension of service

- Notified on OSP’s homepage and the correspondent board

6. Notice Requirement about Order of board service suspension

- OPS notice the result of measures to the Minister of Culture within 10 days after

receiving (i) a Warning about who reproduced ㆍ transmitted Infringed Copies

and (ii) an Order to delete Infringed Copies or suspend transmission and within

15 days after receiving an Order to suspend whole or a part of Bulletin Board

Service

7. Offering a chance to advance an opinion

- Offers a chance to advance an opinion to OSP which becomes the object of an

Order, to the reproducer ㆍ transmitter who has direct interests about the Order

suspending access account, and to the administrator of the board of which

service is suspended(Administrative Procedures Law is applied)


Corrective Advice1. Corrective Advice from Copyright Commission to OSP

- When the Commission investigates the network of OSP and

discovers the fact that infringed copies and others are

transmitted

- Corrective Advice is delivered to the OSP after deliberation

- Contents of Corrective Advice

(i) A Warning to who reproduced ㆍ transmitted Infringed Copies

and others

(ii) Deletion of Infringed Copies and others or Suspension of

transmission

(iii) Suspension of accounts on which the user continuously

transmitted Infringed Copies and others


Corrective Advice2. Notice Requirement of OSP

- OSP notice the result of measures to the Commission within 5 days after

receiving (i) a warning about who reproduced ㆍ transmitted Infringed

Copies and others and (ii) an Advice to delete Infringed Copies and

others or suspend transmission and within 10 days after receiving an

Advice to Suspend accounts on which the user continuously

transmitted infringed copies and others

3. Measures of Copyright Commission

- In case an OSP doesn’t follow the Advice, the Commission can request

the Minister of Culture to (i) warn Infringer and delete or suspend

Infringed Copies and (ii) order to suspend access account of infringer

(Clause no.1 and no.2 of Article no.133-2) – the Minister of Culture can

order without deliberation of the Commission


Challenges in the Future (1)

1. Balancing interests of Copyright holder and user

- Necessity of introducing Fair Use Clause

- Flexible application of Copyright Law on the Internet

- Proposed Revision : Article no.35-3(Fair Use of Work)

1. In other cases than Article no.23 ~ no.35-2, one can use Copyrighted Work

in certain cases which don’t collide with the general methods of using and

don’t harm the legal interest of Copyright holder irrationally.

2. The Court should consider each of followings in order to decide whether if

the use of Work is correspondent to the Fair Use stated in Clause no.1.

(1) Purpose and Method of using, including if it’s Profit or Nonprofit

(2) Kinds and Traits of Copyrighted Material

(3) Quantity and Importance of used parts in the whole material

(4) The influence of use in the present or future market or price


Challenges in the Future (2)

2. Necessity of change in Copyright policy of Korea

- From passive position to active/aggressive position to protect

Copyright

- Need to apply Copyright policy in a view of a developed country

3. Necessity of fostering Copyright Industry of Korea

- Fostering Copyright Industry by utilizing IT technology of Korea

- Korean Copyright policy turning into a position of Copyright holder?

4. Necessity of Copyright Protection overseas

- FTA with China and others?

5. Necessity of creating legal distribution routes

- Limit in means of controlling illegal copies

- Providing a distribution route appropriate to the standard of users


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