Bill to Amend Copyright Act

[Translation by the Library of the Korea National Assembly]
[This translation only contains addenda and comparison of existing and amended provisions]

Bill to Amend the Copyright Act (Bill No. 3349)

Introduced on January 17, 2013
Mr. Choi, Jae-Cheon introduced the following bill; which was referred to the Committee on Culture, Sports, Tourism, Broadcasting and Communications on January 18, 2013
Cosponsors: Kang Dong-Won, Kim Dong-cheol, Nam Yun In-soon, Park Joo-sun, Bae Ki-woon, Shin Kyoung-min, Sim Sang-jeung, You Sung-uop, Lee Seok-ki, Lee Jong-kul, Jung Sung-ho, Hong Jong-haak

Addenda

Article 1 (Enforcement date) This Act shall enter into force six months to the day after its promulgation.

Article 2 (Transitional measures for administrative actions) The previous provisions shall apply to any administrative actions pertaining to violations committed before this Act enters into force.

Article 3 (Transitional measures for fines) The previous provisions shall apply when a fine is imposed on violations committed before this Act enters into force.

Article 4 (Amendment to other laws) The Telecommunication Service Act shall be amended partly as follows:Article 2 “…belonging to the online service providers of special types under Article 104 of the Copyright Act” under item 13a shall read “…belonging to the online service providers whose main purpose is to help transmit copyrighted materials under the Copyright Act or so by using computers between other persons”.“… under Article 45 or Article 104 of the Copyright Act” under Article 22 (2) 1 shall henceforth read as “… under Article 45”.“… under Article 142 (1) or (2) 3” under Article 27 (2) 6 shall read as “… under Article 142 (2) 3”.

Comparison between current and amended articles

Current Amended
Article 2 (Definitions)The definitions of the terms used in this Act shall be as follows: Article 2 (Definitions)The definitions of the terms used in this Act shall be as follows:
1. ∼ 21. (Omitted) 1. ∼ 21. (Same as current)
22. The term “reproduction” means fixing on a tangible object temporarily or permanently or remaking it into a tangible object by means of printing, photographing, copying, sound or visual recording, or other means; in the case of architectural structures, it means carrying out construction in accordance with the models or plans for the relevant construction; 22. The term “reproduction” means fixing on a tangible object (in a reproducible state permanently or in a stable state that continues for a substantial period), or remaking it into a tangible object by means of printing, photographing, copying, sound or visual recording, or other similar means; in the case of architectural structures, it means construction performed in accordance with the models or plans developed for the relevant construction;
23. ∼ 36. (Omitted) 23. ∼ 36. (Same as current)
Article 35-2 (Temporary reproduction in the course of using copyrighted materials) Copyrighted materials may be temporarily reproduced or duplicated on a computer within the extent deemed necessary for smooth and efficient data processing when copyrighted materials are used on a computer. However, this shall not apply when the use of copyrighted materials infringes the copyright. Article 35-2 (Temporary reproduction in the course of using copyrighted materials) Copyrighted materials may be temporarily reproduced or duplicated on a computer within the extent deemed necessary for smooth and efficient data processing or if the duplicate is produced as part of the technical process when copyrighted materials are used on a computer. <The proviso deleted.>
CHAPTER Ⅵ RESTRICTION ON RESPONSIBILITY OF ONLINE SERVICE PROVIDERS CHAPTER VI IMMUNITY OF ONLINE SERVICE PROVIDERS
Article 102 (Restriction on Responsibility of Online Service Providers)(1) The online service providers shall be exempted from responsibility for infringement of copyrights or other rights protected under this Act in connection with acts under the below-listed subparagraphs if they satisfy all the requirements provided under the subparagraphs. Article 102 (Immunity of Online Service Providers)
1. Acts of transmission of copyrighted materials without revision of their contents, designation of transmission paths, provision of connections, or automatic, intermediate or temporary saving of copyrighted materials within a period reasonably necessary for their transmission in the course of such acts;
a.⋅b. (Omitted) a.⋅b. (Same as current)
c. Reasonable implementation of policies adopted to terminate the accounts (the account used by the online service providers to identify or manage users. The same hereinafter in this article, Articles 103-2, 133-2, and 133-3) of those who repeatedly infringe copyright or other rights protected under this Act; c. Reasonable implementation of policies adopted to terminate the accounts (the account used by the online service providers to identify or manage users. The same hereinafter in this article and Article 103-2) of those who repeatedly infringe copyright or other rights protected under this Act;
d. (Omitted) d. (Same as current)
2. Acts of automatic, intermediate or temporary saving of copyrighted materials transmitted at the request of service users for the purpose of ensuring efficient access or transmission by subsequent users
a. … when all the requirements under subparagraph 1 are satisfied; a. … when all the requirements under subparagraph 1 b through d are satisfied;
b. ∼ f. (Omitted) b. ∼ f. (Same as current)
3. Acts of saving copyrighted materials etc. on computers belonging to the online service provider at the request of those who reproduce or transmit;
a. … when all the requirements under subparagraph 1 are satisfied; a. … when all the requirements under subparagraph 1 b through d are satisfied;
b. ∼ d. (Omitted) b. ∼ d. (Same as current)
4. Acts of informing the users of the location of, or connecting them to, copyrighted materials on information communication networks using information search tools;
a. When the requirements under subparagraph 1 are satisfied <Deleted>
b. (Omitted) b. (Same as current)
② (Omitted) ② (Same as current)
(3) In connection with the restriction on responsibility provided under paragraph (1), the online service providers shall not be held responsible for monitoring infringements committed within their service or for actively investigating such infringements. (3) In connection with the immunity provided under paragraph (1), the online service providers shall not be held responsible for monitoring infringements committed within their service or for actively investigating such infringements.
<Newly inserted> (4) The online service providers shall not be inclusively liable for the below-listed obligations concerning acts specified under paragraph (1):1. Obligations regarding the monitoring of copyrighted materials etc. transmitted or saved by the online service providers; or

2. Obligations of the online service providers to actively detect or identify facts or circumstances that constitute illegal acts

Article 103 (Suspension of Reproduction or Transmission)(1) Any person (hereafter referred to as a “rights assertor” in this Article) who asserts that his/her copyright and/or other rights protected under this Act have been infringed due to the reproduction or transmission of works, etc. through the utilization of services by an online service provider (excluding cases falling under Article 102 (1) 1. The same hereafter in this Article) may demand that the online service provider cease the reproduction or transmission of the works, etc. by clarifying the said facts. Article 103 (Suspension of Reproduction or Transmission)(1) Any person (including agents, hereafter referred to as a “rights assertor” in this Article) who asserts that his/her copyright and/or other rights protected under this Act have been infringed due to the reproduction or transmission of works, etc. through the utilization of services by an online service provider (excluding cases falling under Article 102 (1) 1. The same hereafter in this Article) may demand that the online service provider cease the reproduction or transmission of the works, etc. by submitting to the online service provider the relevant clarifying materials (including digital documents) including those under the below-listed.
<Newly inserted> 1. Name in full (including signature), personal data and contact information of the rights assertor
<Newly inserted> 2. Reasonable information with which the online service provider can easily identify copyright infringements etc.
<Newly inserted> 3. Information concerning the location at which copyrighted materials etc. have been infringed on the information communication network operated by the online service provider
<Newly inserted> 4. Statement to the effect that the reproduction or transmission of copyrighted materials etc. belonging to the rights assertor has not been allowed
<Newly inserted> 5. Statement to the effect that the rights assertor shall compensate damages pursuant to paragraph 6 if he/she has demanded the suspension of reproduction or transmission without just rights or will be punished pursuant to Article 137 (1) 6 if he/she has interfered with the services of the online service provider by maliciously demanding the suspension of reproduction or transmission even though he/she is aware that he/she has no just rights
② ∼ ⑦ (Omitted) ② ∼ ⑦ (Same as current)
Article 103-2 (Scope of Court Orders to Online Service Providers)(1) The court may order only the actions provided under the following subparagraphs when ordering necessary actions provided under Article 123 (3) to be taken by an online service provider that has satisfied the requirements under Article 102 (1) 1. Article 103-2 (Scope of Court Orders to Online Service Providers)(1) The court may order only the actions provided under the following subparagraphs to be taken by an online service provider that has satisfied the requirements under Article 102 (1) 1.
1.⋅2. (Omitted) 1.⋅2. (Same as current)
(2) The court may order only the actions under the following subparagraphs when ordering necessary actions provided under Article 123 (3) to be taken by an online service provider that has satisfied the requirements under Article 102 (1) 2 through 4. (2) The court may order only the actions under the following subparagraphs to be taken by an online service provider that has satisfied the requirements under Article 102 (1) 2 through 4.
1. ∼ 4. (Omitted) 1. ∼ 4. (Same as current)
<Newly inserted> (3) The court shall consider the matters provided under the Presidential Decree, including the burden on the online service provider and damages to the copyright holder when it orders actions under paragraph (1) or (2).
Article 104 (Responsibility, etc. of Online Service Providers of Special Type)(1) The online service provider who aims principally to forward works, etc. by using computers between other persons (hereinafter referred to as “online service provider of special type”) shall take the necessary measures, such as technical measures, etc. to cut off illegal forwarding of the relevant work, etc. where there is a request from the holder of rights. In such cases, matters regarding the request of the holder of rights and the necessary measures shall be prescribed by Presidential Decree.

(2) The Minister of Culture, Sports and Tourism may establish and announce the scope of the online service provider of special type pursuant to the provisions of Article 104 (1).

<Deleted>
Article 104-2 (Prohibition of Neutralizing Technical Protective Actions)(1) <Omitted> Article 104-2 (Prohibition of Neutralizing Technical Protective Actions)(1) <Same as current>
(2) No one shall store or possess the below-listed devices, nor provide services, nor advertise or circulate for the manufacture, import, distribution, transmission, sale, lease of products or parts, or for inducing subscription by the general public, sale or lease.
1. Those publicized, advertised or promoted for the purpose of neutralizing technical protective actions 1. Those marketed to be used for neutralizing technical protective actions
2. (Omitted) 2. (Same as current)
3. Those designed, manufactured or modified or function mainly as a means of enabling or facilitating the neutralization of technical protective actions 3. Those designed or manufactured mainly as a means of bypassing technical protective actions
③ (Omitted) ③ (Same as current)
Article 104-5 (Prohibition of Label Forging etc.)No one shall commit acts falling under any of the following:
1. Acts of forging the labels of copyrighted materials etc. for affixing, enclosing or attaching them to illegal reproductions or their documents or packages, or distributing or possessing such forged labels for the purpose of distributing them, in full knowledge of such facts 1. Acts of forging the labels of copyrighted materials etc. for affixing, enclosing or attaching them to illegal reproductions or their documents or packages (limited to cases where the documents or packages are copyrighted, the same hereinafter), or of possessing such forged labels for the purpose of distributing them, in full knowledge of such facts
2.⋅3. (Omitted) 2.⋅3. (Same as current)
Article 113 (Duties)The Commission shall execute the duties provided in the following subparagraphs:
1. ∼ 9. (Omitted) 1. ∼ 9. (Same as current)
10. Recommendation of correction to an online service provider and request for orders for correction to the Minister of Culture, Sports and Tourism pursuant to Article 133-3; <Deleted>
11.⋅12. (Omitted) 11.⋅12. (Same as current)
Article 125-2 (Claim for Statutory Damages) (1) The holder of intellectual property rights may claim for compensation of actual damages from those who have infringed the rights intentionally or by negligence before the defense is closed at the trial court or for a comparable amount of 10 million won (50 million won in cases where rights have been infringed intentionally for profit) or less per infringed copyrighted material in lieu of damages determined pursuant to Article 125 or 126. <The proviso newly inserted.> Article 125-2 (Claim for Statutory Damages) (1) The holder of intellectual property rights may claim for compensation of actual damages from those who have infringed the rights intentionally or by negligence before the defense is closed at the trial court or for a comparable amount of 10 million won (50 million won in cases where rights have been infringed intentionally for profit) or less per infringed copyrighted material in lieu of damages determined pursuant to Article 125 or 126. However, this shall not apply to contracts with the State as one party or contracts under the Act on Contracts to Which the State is a Party.
② ∼ ④ (Omitted) ② ∼ ④ (Same as current)
Article 133-2 (Orders, etc. for the Deletion of Illegal Reproductions, etc. through Information and Communications Network)(1) Where a reproduction or information which infringes copyright or other rights protected under this Act, or a program or information (hereinafter referred to as “illegal reproductions, etc.”) which incapacitates technical protection measures is transmitted through the information and communications network, the Minister of Culture, Sports and Tourism may, following the deliberation of the Commission, order an online service provider to take the measures referred to in the following subparagraphs, as prescribed by Presidential Decree:

1. Warnings to reproducers and transmitters of illegal reproductions, etc.;

2. Deletion or suspension of the transmission of illegal reproductions, etc.

(2) The Minister of Culture, Sports and Tourism may order an online service provider to suspend an account (excluding e-mail only accounts but including other accounts given by the online service provider, the same hereinafter) of those who have been warned three or more times under paragraph (1) 1 for a period of six months or less if illegal reproductions etc. are transmitted.

(3) An online service provider who has received orders pursuant to paragraph (2) shall, seven days before he/she suspends the account of the relevant reproducer and transmitter, notify the relevant reproducer and transmitter of the fact that the relevant account will be suspended, as prescribed by Presidential Decree.

(4) Where, as a bulletin board for which orders pursuant to paragraph (1) 2 have been given more than three times from among bulletin boards (referring to bulletin boards providing commercial interests or utilization convenience from among the bulletin boards referred to in Article 2 (1) 9 of the Act on the Promotion of the Information and Communications Network Utilization and Information Protection, etc.; hereinafter the same shall apply) established in the information and communications network of an online service provider, the relevant bulletin board is judged to seriously harm the utilization order of copyright or so in light of the form of the relevant bulletin board and the quantity and character of the reproductions posted, the Minister of Culture, Sports and Tourism may, following the deliberation of the Commission, order the online service provider to suspend the whole or part of the relevant bulletin board service within a fixed period not exceeding six months, as prescribed by Presidential Decree.

(5) An online service provider who has received orders pursuant to paragraph (4) shall, from ten days before he/she suspends the relevant bulletin board service, post the fact that the relevant bulletin board service will be suspended on the Internet homepage of the relevant online service provider and on the relevant bulletin board, as prescribed by Presidential Decree.

(6) An online service provider shall notify the Minister of Culture, Sports and Tourism of the result of any measures taken within five days of receiving the orders where he/she has received orders pursuant to paragraph (1); within ten days of receiving the orders where he/she has received orders pursuant to paragraph (2); within 15 days of receiving orders where he/she has received orders pursuant to paragraph (4), as prescribed by Presidential Decree.

(7) The Minister of Culture, Sports and Tourism shall give online service providers an opportunity to present their opinion in advance subject to the orders referred to in paragraphs (1), (2) and (4); to reproducers and transmitters who have direct interests in orders pursuant to paragraph (2); and to operators of bulletin boards pursuant to paragraph (4). In such cases, Articles 22 (4) through (6) and Article 27 of the Administrative Procedures Act shall apply mutatis mutandis to the presentation of an opinion.

(8) The Minister of Culture, Sports and Tourism may establish and operate an organization necessary to the conduct of such affairs pursuant to paragraphs (1), (2) and (4).

<Deleted>
Article 133-3 (Recommendation of Correction)(1) Where the Commission, as a result of an investigation into the information and communications network of an online service provider, has discovered that illegal reproductions, etc. have been transmitted, it may deliberate on the matter and recommend the online service provider in question to take measures falling under the following subparagraphs:

1. Warnings to reproducers and transmitters of illegal reproductions, etc.;

2. Deletion and suspension of the transmission of illegal reproductions, etc.;

3. Suspension of the accounts of reproducers and transmitters who have repeatedly transmitted illegal reproductions, etc.

(2) An online service provider shall notify the Commission of the result of any measures taken within five days of receiving the recommendation where he/she has received a recommendation pursuant to paragraph (1) 1 and 2, and within ten days of receiving a recommendation where he/she has received a recommendation pursuant to paragraph (1) 3.

(3) In the event that an online service provider does not comply with the recommendation pursuant to paragraph (1), the Commission may request the Minister of Culture, Sports and Tourism to give orders pursuant to Article 133-2 (1) and (2) to that online service provider.

(4) Where, pursuant to paragraph (3), the Minister of Culture, Sports and Tourism gives orders pursuant to Article 133-2 (1) and (2), the deliberation of the Commission shall not be required.

<Deleted>
Article 142 (Fine for Negligence)(1) A person who has failed to take the necessary measures pursuant to Article 104 (1) shall be punished by a fine for negligence not exceeding 30 million won. <Deleted>
(2) A person who falls under any of the following subparagraphs shall be punished by a fine for negligence not exceeding ten million won:
1. ∼ 3. (Omitted) 1. ∼ 3. (Same as current)
4. A person who has failed to carry out orders given by the Minister of Culture, Sports and Tourism pursuant to Article 133-2 (1), (2) and (4); <Deleted>
5. A person who has failed to give notice pursuant to Article 133-2 (3), to post a notice pursuant to paragraph (5) of the same Article, or to give notice pursuant to paragraph (6) of the same Article. <Deleted>
③ (Omitted) ③ (Same as current)