The amendment to the Copyright Act, which was proposed by the Ministry of Culture, Sports and Tourism (“Proposed Amendment”), has been made public prior to promulgation, and comments will be collected until March 11, 2010. This article summarizes some of the key points of the Proposed Amendment, which will be brought to a vote before the National Assembly in May 2010.

1. Newly-enacted provisions limiting reproduction for private use (Proposed Articles 30, 101-3)

According to Article 30 of the current Copyright Act, reproductions of publicly-disclosed copyrighted materials for non-commercial purposes (i.e., personal or family use, or the equivalent) (the “Private Use”) is allowed as it does not significantly undermine the economic interests of the copyright holder, and may in fact enrich public value by allowing the right to freely distribute information. However, recently, the development of copying and ICT technology has increased the likelihood that private reproductions would damage copyright holders. In particular, comprehensive copying, which occurs online, takes the form of copying illegally copied materials. To address this, the proposed amendment to the Copyright Act stipulates that the “act of copying with the knowledge that it is illegal” is not deemed to be for Private Use. Rather, in such cases, while the violating party will not be subject to criminal punishment, they will be subject to compensation of damages under the civil law.

2. Newly enacted provision for fair use (Proposal Article 35-2)

On February 18, 2010, the 12th Civil Affairs division of the Seoul Southern District Court held that the act of recording a 5-year old girl, who covered the song “Son Dam Bi”, which was uploaded as User-Created Content (“UCC”) and registered on a portal server, was not an infringement of the rights of the song’s copyright holder (Seoul South District Court Case No. 2009 Gahap 18800). Nevertheless, controversy remains as to what would fall under the reasonable scope of fair practice as stipulated under Article 28 of the Copyright Act (which limits an author’s copyrights), and the interpretation of such provision in accordance with the principles of free speech under the Constitution. According to the Proposed Amendment, if existing limitations on an author’s copyrights (e.g., Articles 23 to 35 and Article 101-3 to 101-5) are not applicable to certain cases but do not conflict with the common methods of using copyrighted materials or unfairly damaging the benefit of copyright holders, the usage of such copyrighted materials is allowed. As such, this new provision could be viewed as a general provision in relation to the limitation on an author’s copyrights.

3. Improving registration-related provisions (Proposed Articles 55 through 55-5)

A copyright is deemed to be automatically created in a work at the moment that the work itself is produced. As such, a copyright may be immediately registered once the minimum requirements have been fulfilled. While the current process for registration does not require investigation prior to registration, in order to cancel the registration, in principle, a conclusive judgment from a court is required. However, there has been some abuse under this system: more specifically, there have been instances when a third party, who is not the originator / holder of a copyright, has used the court system to register himself as the true holder of such copyright. Such third party would then manipulate this registration system and received ransom from the true copyright holder. Therefore, the proposed amendment to the Copyright Act enables the Minister of Culture, Sports and Tourism to investigate whether an application for the registration of a copyright has already been copyrighted as well as investigate whether the details included in a registration are accurate. The Minister is empowered to reject any application or cancel a copyright registration upon discovery of any such abuse of the registration system. With the introduction of the amendment, the Minister of Culture, Sports and Tourism may now reject and/or terminate any fraudulent registration without requiring any ruling by the courts.

4. Introduction of arbitration system (proposal Article 112 and 113)

Under the current Copyright Act, the only methods for resolving a dispute arising out of a copyright-related matter were by conciliation or mediation. The proposed amendment to the Copyright Act adopted arbitration as an additional method of dispute resolution for copyrights. Since an arbitral award has the same legal effect as a final and conclusive judgment of a court, the adoption of arbitration will provide a more efficient method in resolving copyright-related disputes.