Transcript Article 35-3 (Fair Use of Works, etc.)

ADA Copyright Forum 2017:
Fair Use, Flexibility and Exceptions for Creativity
National Library of Australia
February 24th 2017
Fair Use
in Korea
2017-03-28
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Sang Jo JONG
Professor of Law
Seoul National University
Fair Use in A Broad Sense
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Article 25 (Use for Purpose of School Education)
Article 26 (Use for Current News Reporting)
Article 27 (Reproduction, etc. of Current News Articles or
Editorials)
Article 28 (Quotation from Works Made Public)
Article 29 (Public Performance and Broadcasting for Non-Profit
Purposes)
Article 30 (Reproduction for Private Use)
Article 31 (Reproductions, etc. in Libraries, etc.)
Article 32 (Reproduction for Examination Questions)
Article 33 (Reproduction, etc. for Visually Handicapped, etc.)
Article 34 (Temporary Sound or Video Recordings by
Broadcasting Service Providers)
Article 35 (Exhibition or Reproduction of Works of Art, etc.)
Article 35-2 (Temporary Reproduction in Course of Using Works,
etc.)
Article 35-3 (Fair Use of Works, etc.)
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Quotation
• Article 28 (Quotation from Works Made Public)
Works already made public may be quoted for
news report, criticism, education, research,
etc., in compliance with the fair practices
within the reasonable extent.
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Purpose Not Limited to
News Report, Criticism, Education, Research
Q: Did the copyright
owner’s takedown notice
contain a material
misrepresentation
sufficient to give rise to
liability under the DMCA?
Q: Did the internet user
infringe upon copyright by
uploading a video
including a song as its
background music?
Seoul High Court Decision
2010na35260 decided on
Oct. 13, 2010.
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Lenz v. Universal Music Corp.,
572 F. Supp. 2d 1150, 88
U.S.P.Q.2d 1629 (N.D. Cal.
2008)
표
를
화
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해
을
산
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위
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결
Thumb-nail Images
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 as a result of users’ image
search (2005Do7793, 9 February
2006; 2009Da4343, 11 March
2010)
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공
니
한
어
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게
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고
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복
것
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Quotation is only allowed when it is
consistent with a fair practice and
within a legitimate scope. Whether a
quotation meets these conditions is
determined by considering the
totality of circumstances 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 replacement of the
market demand for original work:
Supreme Court Decision 2012Do10777,
26 August 2014
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Quotation Different from Fair Use
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
copying and submitting a journal article
was made for profit and, thus, not entitled
to quotation exception:
Supreme Court Decision 2011do5835
decided on Feb. 15, 2013.
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A General Clause on Fair Use
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Article 35-3 (Fair Use of Works, etc.)(1) Except as provided in
Articles 23 through 35-2 and 101-3 through 101-5, where a
person does not unduly harm an author's legitimate profits without
conflicting with the usual method of using works, etc., he/she may
use such works.
(2) In determining whether an act of using works, etc. falls under
paragraph (1), the following matters shall be considered:
1. Purposes and characters of use, such as for-profit or nonprofit;
2. Types and uses of works, etc.;
3. Proportions of used parts in the entire works, etc. and their
importance;
4. Influence of the use of works, etc. over the current market or
value or potential market or value of such works, etc.
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It is a fair use to reproduce an academic article from
Internet and submit it to the Food and Drug Agency
(KFDA ). The factual background of the Rosehip case is
the same as the Lyprinol case. Hyben-Vital of Denmark
has produced rosehip, an ingredient in skincare and
having 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 planned to import a
rosehip ingredient from Chile and 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 Rosehip court held that
the act for 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.
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