고려대학교 법과대학 이대희 1

Dae-Hee Lee

Korea University School of Lawit-law@korea.ac.kr

Protecting Publishers under

Korea’s Copyright Act

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1. Exclusive License for Publication

2. Protection of Publishers under Korea’s Copyright Act

3. Challenges for Protection

4. Typographical Arrangement

Table

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1. Exclusive License of Publication

① Exclusive license to reproduce and distribute works, or

② Exclusive license to reproduce and make available of works to

the public (transmit electronically)

2. Right of Publication

- Exclusive license to reproduce and distribute works in writing,

drawing or other similar means

● License

- Contract between a copyright owner and a publisher to publish

Publishers’ Rights

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● Exclusive right to reproduce, distribute, and make available of

works to the public

right to bring a suit against infringers to prevent infringement

right to claim damages against infringers

● Exclusive vs. Nonexclusive

- Nonexclusive license: no right to bring a suit or claim damages

against infringers; only contractual right to ask a copyright owner to

bring a suit or claim damages against infringers

● Exclusive licensee

treated just as a copyright owners

Exclusive?

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1. Filtering Requirements

● Copyright owners may request special types of ISPs to …. (104)

▶ To take necessary measures such as technological measures

intercepting illegal interactive transmission of works, etc. upon the

requests of rights holders

▶ Special types of ISP: Its main purpose is to enable different people

to interactively transmit works, etc. among themselves by using

computers (P2P service providers; webstorage service providers)

● Filtering technologies

▶ Audio/ video fingerprinting technologies

Protection under Copyright Act

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2. Notice and Takedown Process

(1) Copyright owners → require the OSP to delete infringing materials

(by proving infringement)

(2) OSP → must immediately delete/ and give a notice to the uploader

(3) OSP → must upload the file previously deleted when the uploader

proves legitimacy of uploading/ and notify the uploader of it

▶ If complies with the process → OSP not liable for deleting the

file (to uploader), or for copyright infringement (to copyright owner)

Protection under Copyright Act

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3. The Minister (MCST) may order ISPs

(1) To delete illegal files of work on its network

(2) To warn infringers (account holders) of copyright infringement

(3) To suspend the infringer’s account up to 6 months

- Still able to use email accounts

- Repeat infringers who have been warned of copyright

infringement at least three times Three-strike out?

(4) To shut down all or parts of the bulletin board up to 6 months

- All required to meet the resolution by the KCC

● If ISPs not comply with the order?

- Subject to administrative fine up to about $8,000

Protection under Copyright Act

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Webstorage Service

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Webstorage Service

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4. The KCC may recommend ISPs1. To delete illegal files of work on its network2. To warn infringers (account holders) of copyright infringement 3. To suspend the infringer’s account up to 6 months

● If not comply with the order?

- KCC may ask the Minister to order delete..…..

● What is happening?

- When recommended, the ISPs usually delete infringing files, or warn

- However, it is easy to upload the same kind of infringing files,

disregard warning, or open new accounts in different sites

Protection under Copyright Act

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5. Right as a database producer

▶ Where publishers establish a database

▶ database?: a collection of independent works, data or other

materials arranged in a systematic or methodical way and

individually accessible by electronic or other means (EU Directive)

▶ Korea: sui generis protection for database producers

Protection under Copyright Act

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● Korea provides a strong protection to publishers.

● Problem: Default term of exclusive license

▶3 years unless otherwise agreed between an author and a publisher

▶ In practice, usually 5 years of term

--- longer term of license is rare in Korea

Enough Protection?

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● 3 or 5 years, enough to protect publishers?

▶ Maybe yes, in analog publication

▶ Maybe no, or surely no in digital publication

- Electronic (digital) books survive longer than printed books

- Term of 3 or 5 years is not enough for protection

- After the lapse of the term, publishers do not have any rights, or

remedies.

▶Alternative?

- Right in the typographical arrangement of published edition

Enough Protection?

Dae-Hee Lee, Korea University Law School 142012-09-19

From Print to Digital

From the traditional print-on-paper publications

to the new world of electronic publishing

Transition period:

Now in progress → will be in full swing

Dae-Hee Lee, Korea University Law School 152012-09-19

Digital

● How digital books can be distributed?

- tangible media: contents on CD/ DVD

- internet: online publishing (web publishing)

- portable devices: e-book reader; cell phone

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● Right in the typographical arrangement of published edition

- protects publishers against unauthorized reproduction of the

work incorporating the typographical arrangement

- In some jurisdictions

- in the form of neighboring right

- protects publishers despite the absence of copyright in the work

● Need to award right in the typographical arrangement of

published edition

● In addition to this right, some measures are needed to protect

or encourage publishers in Korea

Typographical Arrangement

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[ The End ]

Any Questions?

Feel free to contact at it-law@korea.ac.kr