Fair use

Fair use (공정한 이용/公正利用) is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work.

Though the term fair use originated in the United States, in Korea also, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders.

Examples of fair use in the United States include commentary, search engines, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under the following four-factor balancing test.
 * 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
 * 2) the nature of the copyrighted work;
 * 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
 * 4) the effect of the use upon the potential market for or value of the copyrighted work.

Statutory grounds
In Korea, the Copyright Act provides for the statutory grounds of fair use and typical examples.

Article 35-3 (Fair Use of the Copyrighted Works) of the Act
 * (1) Except Articles 23 through 35-2 and 101-3 through 101-5, and unless otherwise being in conflict with usual use of copyrighted works nor doing unfair harm to legitimate interest of the author, any copyrighted work may be used for the purposes of news report, criticism, education, research, etc.
 * (2) 저작물 이용 행위가 제1항에 해당하는지를 판단할 때에는 다음 각 호의 사항등을 고려하여야 한다.
 * 1. 영리성 또는 비영리성 등 이용의 목적 및 성격
 * 2. 저작물의 종류 및 용도
 * 3. 이용된 부분이 저작물 전체에서 차지하는 비중과 그 중요성
 * 4. 저작물의 이용이 그 저작물의 현재 시장 또는 가치나 잠재적인 시장 또는 가치에 미치는 영향
 * [This Article newly established on December 2, 2011.]

Article 28 (Quotations from Works Made Public)
 * It shall be permissible to make quotations from a work already made public: provided that they are within a reasonable limit for news reporting, criticism, education and research, etc. and compatible with fair practices.

Article 37 (Indication of Sources)
 * (1) A person who uses a work pursuant to this Subsection shall indicate its sources, except the cases as prescribed under Articles 26, 29 through 32, 34 and 35-2. 
 * (2) The indication of the sources shall be made clearly in a manner and to the extent deemed reasonable in the situation in which the work is used. If the real name or pseudonym of the author of a work is indicated, such real name or pseudonym shall be indicated.

Article 37-2 (Exclusion to Application)
 * Articles 23, 25, 30, and 32 shall not apply to programs.
 * [This Article added on April 22, 2009]

Article 38 (Relationship with Author’s Moral Rights)
 * No provision of this Subsection may be interpreted as affecting the protection of author’s moral rights.

Supreme Court cases
Prior to the 2012 amendment to the Act, the Supreme Court provided the factors necessary to decide the fair use.
 * 구 저작권법 제28조는 공표된 저작물은 보도·비평·교육·연구 등을 위하여는 정당한 범위 안에서 공정한 관행에 합치되게 이를 인용할 수 있다고 규정하고 있는바, 정당한 범위 안에서 공정한 관행에 합치되게 인용한 것인가의 여부는 인용의 목적, 저작물의 성질, 인용된 내용과 분량, 피인용저작물을 수록한 방법과 형태, 독자의 일반적 관념, 원저작물에 대한 수요를 대체하는지 여부 등을 종합적으로 고려하여 판단하여야 할 것이고, 이 경우 반드시 비영리적인 목적을 위한 이용만이 인정될 수 있는 것은 아니라 할 것이지만, 영리적인 목적을 위한 이용은 비영리적 목적을 위한 이용의 경우에 비하여 자유이용이 허용되는 범위가 상당히 좁아진다.

The Supreme Court elaborated the following factors to be taken into consideration in deciding fair use, which were stipulated in the 2011 amendment to the Copyright Act:
 * the purpose of use and the nature of copyrighted work
 * → the for-profit or non-profit purpose and character of use


 * the content and amount the portion used
 * → the type and usage of the copyrighted work


 * the method and style of use of copyrighted work
 * → the share and materiality of the portion used in relation to the copyrighted work as a whole


 * the general conception of readers and the replaceability of needs for the original work
 * → the influence of the use upon the current/potential market for or value of the copyrighted work.

Fair Use v. Free Expression
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.

In 2009, 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 pop song, “Crazy” sung by Sohn Dambi. Just soon after the video clip was uploaded, it was taken down by Naver manager 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 based on the fair use doctrine.

The court held:
 * 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. . . 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. . . If this kind of UCC is barred from being uploaded online, it results in an unnecessarily excessive restraint on the free expression. . . The video at issue did not constitute a copyright infringement.

The court 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, a safe harbor clause.

Another interesting part of this ruling is that the court clearly found that the free expression under the Constitution must be considered fully and fairly in determining whether there exists a copyright infringement or not. Although the Copyright Act has a fair use 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.