Obligations of OSPs

OSPs stands for online service providers (온라인서비스제공자, 정보통신서비스제공자) meaning the Internet service providers in the context of the relevant Korean laws.

In 2011, Korean netizens learned how their works on the Internet would be treated by OSPs with respect to the copyright issue from a noteworthy Constitutional Court decision.

The Constitutional Court unanimously held the Article 104(1) of the Copyright Act constitutional which required online service providers (OSPs) to take measures including technical measures disabling unlawful transmission of original works upon the right holder's request.

Key words
copyright, online service provider (OSP), negligence, original works, technical measures

Provisions subject to Review
The Copyright Act

Article 104 (Obligation on a particular group of OSPs) (hereinafter, the "Instant Provision I")
 * (1) Online service providers whose main purpose is to enable different people to interactively transmit original works, etc. among themselves by computers (hereinafter the “particular group of online service providers”) shall take necessary measures such as technological measures for disabling illegal interactive transmission of original works upon the requests of right holders. In such cases, matters related to requests of rights holders and necessary measures shall be set forth by Presidential Decree.

Article 142 (Fine for Negligence) (hereinafter, the "Instant Provision II")
 * (1) A person who fails to take necessary measures prescribed in Section 1 of Article 104 shall be punished by a fine for negligence not exceeding KRW30 million and a person who fails to perform the obligation set forth in the Article 106 or a person who fails to satisfy the conditions under the Order of Minister made under the Article 133(4) of this Act shall be punished by a fine for negligence not exceeding KRW10 million.
 * (2) The fine set forth in Section 1 in this Article shall be imposed and collected by the Minister of Culture, Sports and Tourism according to related Presidential Decree.

The Copyright Act

Article 104 (Obligation on a particular group of OSP) (hereinafter, the “Instant Provision III”)
 * (2) The Minister of Culture, Sports and Tourism may announce a notification defining the particular group of online service providers who shall be subject to above Section 1of this Article.

Background of the Case
Petitioners were imposed administrative penalties of fines for not taking any measure necessary to disable unauthorized transmission of original works and not fulfilling their obligations under the Instant Provision I and II.

Petitioners as OSPs, who operate internet websites using "peer to peer" or "P2P" file sharing computer programs to provide audio and video file-downloading service, were deemed to be the particular group of OSPs who should be subject to the obligation prescribed in the Instant Provisions I and II.

Petitioners dissatisfied with that administrative disposition filed a notice of appeal with the court and, during the proceeding, they requested such court to file a request to the Constitutional Court (hereinafter, the "Court") to have a constitutional review on statutes of Instant Provisions I, II and III.

However the request to the court was dismissed and petitioners filed this constitutional complaint with the Court.

Summary of Decision
The Constitutional Court unanimously held the Article 104 (1) of the Copyright Act and the Article 142 (1) and (2) of the Copyright Act constitutional and also, in a 7-2 decision, held the Article 104 (2) of the Copyright Act constitutional.

Summary of Opinion Concerning Constitutionality
(1) When we consider the nature of ambit to be controlled by law in this case, a concrete and descriptive wording of the statute defining "the particular group of OSPs" who take certain responsibility for disabling unauthorized transmission of original works is inevitably difficult and a professional and empirical analysis should be required. We, therefore, should admit that there are necessary to make the Ministry of Culture, Sports and Tourism to have a power of announcing notifications as delegated function in order to define that particular group of OSPs.

In addition, the part of the "right holder's request" to a particular group of OSP and the part of "necessary measures" including technical measures in order to disable unlawful transmission of original works shall be regulated flexibly by lower-level rules in its delegated legislative function considering the nature of the original work itself, online infringement in reality and the phase of technology development.

Instant Provision I and III do not violate the principle of rule against blanket statutory delegation in that contents of text to be promulgated in the notification made by the Minister of Culture, Sports and Tourism and President Ordinance are sufficiently forseeable when we examine the purpose of legislation, policies in enactment of the Copyright Act and related regulations. (2) Through disabling unauthorized transmission of original works, the provisions subject to review in this case aim to protect rights of right holders improving culture in society as well as developing related industries and the provisions amount to be proper means to achieve those goals pursued.

Furthermore, there can be no alternative means to achieve the same legislative goals less interfering than the provisions subject to review in this case, not violating the rule of the least restrictive means due to reasons as follows:
 * Instant Provision I and III only require certain OSPs to take measure disabling unauthorized transmission of original works only upon right holders' request;
 * measures technologically impracticable are not required to be taken;
 * online copyright infringements have been prevalent so far.

Provisions at issue, also, properly balance interests involved in that, while imposing limited responsibility to take technical measure on designated OSPs can not be deemed a significant interference on the freedom of occupation, public interest in preventing harmful consequences of unlawful transmission of original works for the sake of improving and developing culture in society and related industry is grave. Therefore, Instant Provision I, II and III do not infringe upon petitioners' rights to choose occupation. (3) Treating a particular group of OSPs different from the other OSPs on the ground that services provided by the former in its nature are more vulnerable to be used for unauthorized transmission than those provided by the later appears to have reasonable justification not to constitute a discrimination.

(4) By not allowing a particular group of OSPs, who acknowledge that unlawful transmission can be easily generated due to the nature of service, to facilitate unlawful transmission, Instant Provision I, II and III articulate and specify the principle that a person should take accountability for his/her own behavior and those provisions is not incompatible with that principle.

Summary of Opinion Concerning Unconstitutionality of Article 104(2)
The Article 103(2) of the Copyright Act allows the Minister of Culture, Sports and Tourism to make regulations with respect to the person subject to that Article who takes responsibility prescribed in the Article 103(1). On the contrary, our Constitution in its affirmative expression articulates provisions regarding "Statutory Ordinance and Oder" (법규명령/法規命令), such as President Ordinance, which are to be issued by a particular administrative authorities such as the President but have statutory effects regulating people's rights and duties, as follows:
 * specific types of those Statutory Ordinance and Oder;
 * particular administrative authorities to have power to issue those ordinances and orders;
 * permissible scope of delegation of that function; and
 * conditions of that delegation, etc.

Therefore, not only the Statutory Ordinance and Order unpermissible under the Constitution can not be enacted by the legislature, but also the matters to be regulated by the Statutory Ordinance and Order can not be regulated by administrative regulations or rules which have no such statutory effect.

Consideration of those above mentioned leads us to make a conclusion that the Article 104(2) violates the Constitution in that it directly delegates the specific authorities' power to issue a Statutory Ordinance and Order regulating peoples' duties on the Minister of Culture, Sports and Tourism who does not have such power.