There have been an increasing conflict between the free expression and the copyright protection in relation to the matter of a UCC, a user-created content, posted on the internet site. For example, in the United States, there was a legal dispute concerning a 29-second YouTube video clip of a toddler dancing to Prince’s “Let’s Go Crazy”. In that case, the copyright holder to the Prince’s song alleged the YouTube video clip explicitly infringed the song’s copyright.
Almost the identical lawsuit had been filed in South Korea. In Korea, a father uploaded to his blog operated by Naver, the largest Internet portal site, a video capturing his 5 year-old daughter singing and dancing to a famous Korean female singer(Dambi Sohn)’s song, titled “Crazy” – what a coincident that two cases even had very similar song titles, “Let’s Go Crazw” and “Crazy”. Just soon after the video clip was uploaded, it was taken down by the portal site operator upon a request from the copyright holder to the song alleging the video is a copyright infringement as it was used without permission. Then the father filed both a declaratory lawsuit claiming that uploading the video did not constitute a copyright infringement and a monetary compensation lawsuit for mental distress which he suffered from the unjust take down of the video he’d made.
On February 18, 2010, the Seoul Southern District Court sided with the father. The court ruled that uploading a video at issue did not constitute a copyright infringement because it fell within the scope of “the quotation from works made public” under Article 28 of the Copyright Act, which is a similar legal concept of fair use doctrine in the U.S. legal system.
The court found that “the video is the father’s own copyrighted work distinguishable from the popular song and made out of non-commercial purpose. It does not take advantage of the commercial value of the song”.
Also the court pointed out that “the duration of the scene where the toddler sings and dances to the song is only 15 second long and the quality of the recording sound in the video is very poor, which makes it hard to find that the video is using the song substantially”.
The court added that “if this kind of UCC is barred from being uploaded online, it results in an unnecessarily excessive restraint on the free expression”.
Finally the court declared that the video at issue did not constitute a copyright infringement and ordered the copyright holder to pay the father monetary compensation for emotional damages suffered from the take down.
The interesting point of this ruling is that the court acknowledged internet user’s “fair use right of a copyrighted work”. The court held that copyright holder’s take down notice to the video at issue infringed this right and so ordered monetary compensation. By the way, Naver, a portal site, was exempted from this obligation to compensate, because, as an online service provider, its take down process was duly made pursuant to the Article 103 of the Copyright Act which is similar to the safe harbor clause in the U.S. copyright act.
Another interesting part of this ruling is that the court clearly found that the free expression under the constitution of South Korea must be considered fully and fairly in determining whether there exists a copyright infringement or not. Although the Korean Copyright Act has a fair-use-like clause, the clause is stated relatively narrowly so there has been a certain criticism that Korean court is not active in holding up a fair use defense. But this ruling held that the constitutional right of free expression has the equal value as a copyright protection stated in the Copyright Act which is a subordinate law to the constitution. That’s why I welcome this ruling and expect to see the balance between the free expression and copyright with more fair use defences accepted in the Korean court in the future.
© 2010 Mr. Wonil Chung, a Korean Licensed Lawyer/Chung & Partners, a Korean Law Firm. All rights reserved.