Abolish the Copyright Law Abuse
Abolish the Copyright Law Abuse
  • Choi Jong sun / Section cheif
  • 승인 2016.10.12 17:04
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South Korea’s Copyright Act (established Jun. 28, 1957) followed the tracks of Berne Convention for the Protection of Literary and Artistic Works (established Sep. 9, 1886) that protected the literary and artistic creative works. It also approved for both authorship rights and intellectual property like Copyright Act made in France.
In the early days, the prominent feature of Copyright Act was to impose the duty to return the present enrichment with the sole intention of protecting the infringers with good will and no faults. (Art. 66 of Copyright Act; Para. 432 of the legislations) On Dec. 31, 1986, on the occasion of protecting the assets of both the copyright holder and the user’s rights, the conditions for restricting the intellectual property was specified with the first reform of the Copyright Act. (Para. 3916 of the legislations) The frequent case of infringement of the copyright holder’s rights is due to the lack of awareness on the copyright laws.
However in the recent days, some copyright holders have abused the copyright laws by carelessly making lawsuits just for the settlement money. Two of such cases are as follows; the first case is where a club site operator had induced many and unspecified people to spread a self-produced video clip with scenes of physical punishment to café on an internet portal site. The operator had been prosecuted for making false claims and blackmailing money to the spreaders under the pretext of Copyright Act violation settlement. Another case is where a copyright holder of a novel illegally copied and circulated his literary property through internet file sharing program Torrent. 116 downloaders were sued and claimed 5,000,000 KRW each person for damages. Afterwards, the copyright holder contacted with 60 of the defendants and settled on the case privately. (Incheon District Court 2014Gahap51899, 2014Gahap51967) As more cases like these instances take place, the need for the protection method for the victims are kept being brought up.
The first case is an abuse of Copyright Act in that the copyright holder induced a third person to infringe the copyright law with his creative work, insisted through attorney the infringement on copyright and only settled for money. Those who were not settled beforehand were sued to the investigation authority and withdrawn only after they were extorted of settlement money. On the second case, the copyright holder made lawsuit against the many and unspecified minors and actually made the entry as “withdrawal only in the case of settlement for specified amount of money.” The court officially acknowledged it as a planned litigation which is popularly known as “settlement money business.” According to jurisdiction almanac in 2016, 240 out of 785 claims for damages caused by infringement on the intellectual property had been disengaged after the first trial, by the parties in dispute. These much number makes it suspicious enough as lawsuits abusing Copyright Act for monetary profits.
Article 22, clause 2 of constitution of the Republic of Korea clearly states that an originator, inventor, scientific technician and artist’s rights are protected by the law. In addition to this, Copyright Act gives the original creator right of disclosure and attribution, which comes under the name of “author’s moral rights,” and the right of integrity, reproduction, public performance, public transmission, exhibition, distribution, lease and production of derivative works that goes under the category of “author’s property rights”. Accordingly, every citizen has the duty to comply with the related regulations in which prevent the authors’ rights from being violated. In the case of transgressing the author’s property rights, the accused is sentenced to five years or less of prison labor or penalty of less than 50,000,000 KRW (Copyright Act article 136, clause 1, sub-para. 1). On the other hand, in the case of infringing upon the author’s moral rights, the defendant is convicted to less than three years of imprisonment or fine of less than 30,000,000 KRW (Copyright Act article 136, clause 2, sub-para. 1). Whereas if a copyright owner abuses or does unfair transactions and evolves into a market-controlling enterpriser, the defendant could be sanctioned in accordance with code of monopoly regulation and fair trade. Yet, in the case where a copyright holder, who is not an entrepreneur, interfere with general citizens executing rights in freely using the copyrighted work following Copyright Act (sub-para. 24083), from article 23 to 38, or indiscreetly make lawsuits for monetary profit, there is no penalty or regulation that can impose sanctions against such actions.
General public are penalized to penal servitude or fined when they violate the authorship protection regulations. Therefore, in the case where a copyright owner infringe upon general citizens’ right to freely use the intellectual properties, or abuse the right for unfair intentions, regulations that can punish the abusers need to be established. In this way, both the copyright holder and the users’ rights can be protected harmoniously.