The Copyright Law, as regulated in Article 1, aims to contribute to the improvement and development of culture and related industries by protecting the rights of authors and their neighboring rights and promoting the equitable use of their works. Acco...
The Copyright Law, as regulated in Article 1, aims to contribute to the improvement and development of culture and related industries by protecting the rights of authors and their neighboring rights and promoting the equitable use of their works. Accordingly, the Copyright Law regulates protection of copyright holder’s creation and guarantee of use of copyrighted works, because the Copyright Law protects the rights of the authors and contributes to the activation of use of copyrighted works.
The former Copyright Law restricts the economic rights of copyright holders individually by Article 23 through Article 35. However, under the influence of South Korea-United States Free Trade Agreement, the Copyright Law revised in 2011 and newly established Article 35(3), which regulates the Fair Use. So, at this time, individual restrictions on economic rights of copyright holders and regulation of the Fair Use are enforced together in Korea.
However, unlike the purpose of legislation to promote Fair Use, the degree of application of Article 35(3) is low in substance until now. There’s only two judgements – one is judged by Supreme Court, and the other is judged by District Court – and one decision judged by Constitutional Court.
Article 35(3) of Copyright Law is revised in March 2016 and implemented in September, by removing the phrases like ‘for the purpose of ing, review, education, research, etc.’ and ‘profitability or non-profitability etc.’ which were examples of Fair Use. For this revision, there are expectations of promoting and development of Fair Use in Korea.
But without substantial revision of Copyright Law more than now, there is no way to activation of the Fair Use. Here are some solutions. First, the restrictions of the economic rights of copyright holders should be narrowed and detailed in scope of application for enlargement of the application of the Fair Use. Second, regulation of the Fair Use should be placed at the forefront of the provisions related the limitation of rights of copyright holders. Third, Fair Use needs to be understood as the circumstances precluding wrongfulness. Then, regulation of the Fair Use will be functioning more than before.
Consequently, accumulation of judgements related the Fair Use is must be required, and steadily study on the Fair Use is essential for the advance of Copyright Law.
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