lundi, juin 13, 2011

Korea: Copyright holder held liable for damages after requesting deletion of online postings

Contributed by Kim & Chang


The Seoul High Court recently ruled that a copyright holder was liable for compensation for damages. The liability arose from the holder's request to suspend the reproduction and transmission of its copyrighted works posted on an internet portal site, when in fact such use constituted fair use of work that had been made public.

The plaintiff created a video file of user-generated content which contained a recording of his daughter singing a musical work of a popular singer and posted the same on his blog. The defendant, a copyright trust management company, requested the suspension of the reproduction and transmission of thousands of postings on a website, including the plaintiff's video file, claiming that the postings infringed copyrights with which the defendant was entrusted. Accordingly, the operators of the relevant internet portal site removed the postings. The plaintiff then brought a lawsuit against the defendant, claiming compensation for the damages that the plaintiff had incurred as a result of the defendant's request to suspend the reproduction and transmission of the works, which the plaintiff alleged had been made with no legitimate rights.

The court ruled that the plaintiff's video file fell under the copyright exception for fair use of published works (Article 28 of the Copyright Act), taking the following factors into consideration:

  • The plaintiff's video file had a creative and productive purpose, as it was a recording of his daughter singing a published musical work and mimicking the dance moves of a popular singer. It was not created or transmitted for commercial purposes;
  • As the portion of musical work quoted was insignificant and sung imperfectly, it was difficult to conclude that it substituted the market demand for the musical work concerned; and
  • The source of the musical work was clearly indicated on the relevant posting by citing the singer's name and the title of the song.

In view of the foregoing, the court held that the plaintiff could freely reproduce, distribute and transmit the video file at issue.
The court further held that in accordance with Article 103(6) of the Copyright Act, a person that has requested an online service provider to suspend the reproduction and transmission of a copyrighted work should compensate for any damages caused if:

  • it knew that it had no copyright in the work at issue or it did not have this knowledge in violation of its duty to exercise due care; or
  • it knew that the work at issue did not infringe its copyright or failed to exercise due care in evaluating whether it constituted copyright infringement by means of, for example, seeking legal advice in a faithful and reasonable manner.

The court held that even though the defendant was an entrusted holder of copyrights in certain musical works, it had requested the suspension of the reproduction and transmission of video files that were suspected of having been created or produced by using the copyrighted works, without first reviewing them individually. Thus, because the defendant had requested that the reproduction and transmission of the plaintiff's video file be suspended, without having first reviewed whether it fell under the exception for fair use of published works, the defendant was liable to compensate for the (mental) damages suffered by the plaintiff.

For further information on this topic please contact
Jay Young June Yang or Ji Eun Lee at Kim & Chang by telephone (+822 3703 1114), fax (+822 737 9091 3) or email (yjyang@kimchang.com or jelee1@kimchang.com).