Pub Date : 2023-06-30DOI: 10.30582/kdps.2023.36.2.117
Kyoung-Hun Min
The Supreme Court’s ruling on “Andy Warhol v. Goldsmith” (hereinafter referred to as the “Andy Warhol case”) was made on May 18, 2023. The Supreme Court agreed with the ruling of the Second Circuit Court of Appeals and ruled that Andy Warhol’s “Orange Prince” and “Prince Series” were copyright infringement, not fair use, because they could not be regarded as transformative use. This case will be the most important case in the art world as a ruling on fair use in the past 20 years or so. And the outcome of this ruling could have a tremendous impact on the future of appropriation art, so-called pop art. In the Andy Warhol case, the rulings of the first trial and the appeal trial were sharply divided. The first trial judged that Andy Warhol’s use could not be regarded as fair use for each factor of judgment, but as a result, it was fair use. However, the appeals court ruled in favor of Goldsmith, judging that the first trial court made a mistake in reviewing the fair use factors and that it was not fair use in all of the fair use judgment factors. Therefore, this paper analyzed the rulings in each court. In addition, the concept of appropriation art in Korea and copyright infringement cases related to the current parody were reviewed, and what judgments would be made if the Andy Warhol ruling was applied to Korea in the future. Finally, in Korea, it was concluded that it is desirable to actively interpret fair use doctrine as much as possible so that freedom of creation can be guaranteed if fair use is a problem in copyright infringement cases.
{"title":"Quo vadis, What will be the Future of Appropriation Art?: Focusing on “The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith”","authors":"Kyoung-Hun Min","doi":"10.30582/kdps.2023.36.2.117","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.2.117","url":null,"abstract":"The Supreme Court’s ruling on “Andy Warhol v. Goldsmith” (hereinafter referred to as the “Andy Warhol case”) was made on May 18, 2023. The Supreme Court agreed with the ruling of the Second Circuit Court of Appeals and ruled that Andy Warhol’s “Orange Prince” and “Prince Series” were copyright infringement, not fair use, because they could not be regarded as transformative use. \u0000This case will be the most important case in the art world as a ruling on fair use in the past 20 years or so. And the outcome of this ruling could have a tremendous impact on the future of appropriation art, so-called pop art. \u0000In the Andy Warhol case, the rulings of the first trial and the appeal trial were sharply divided. The first trial judged that Andy Warhol’s use could not be regarded as fair use for each factor of judgment, but as a result, it was fair use. However, the appeals court ruled in favor of Goldsmith, judging that the first trial court made a mistake in reviewing the fair use factors and that it was not fair use in all of the fair use judgment factors. \u0000Therefore, this paper analyzed the rulings in each court. In addition, the concept of appropriation art in Korea and copyright infringement cases related to the current parody were reviewed, and what judgments would be made if the Andy Warhol ruling was applied to Korea in the future. \u0000Finally, in Korea, it was concluded that it is desirable to actively interpret fair use doctrine as much as possible so that freedom of creation can be guaranteed if fair use is a problem in copyright infringement cases.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"268 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124354484","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.30582/kdps.2023.36.2.33
Wonoh Kim
With the development of generative artificial intelligence technology, AI is emerging as a complete creative subject throughout the creative process. Therefore, in this paper, the concept of artificial intelligence-generated works (AGW) with minimal human intervention among AI-related creations is clearly defined through comparison with adjacent concepts, and then comprehensively summarizes the limitations of AGW protection in the interpretation of the current copyright law, and the international trend and overseas trends are briefly checked. Second, if it is difficult to protect by granting copyrights to AGW, first, consider how to leave it as a public domain, but also review the theoretical grounds for the theory of putting public domain and specific implementation methods thereof. Furthermore, we examine the limitations and problems of the theory of public domains, such as concerns about the possibility of abuse and false registration, as well as alternative solutions, to see what problems neglecting AGW, which is difficult to distinguish from human creation, can cause. Third, as a concrete protection methodology that has been discussed as an alternative solution, we look at the unification/dualization method and the method of subsuming within the copyright normative system or enacting a special law. In either way, the protection of AGW is premised on discriminatory protection, so this paper focuses on the theory of so-called ‘thin copyright protection’ and examines the key points that need to be reviewed in case of discriminatory protection.
{"title":"Limitations on Granting Copyrights to AI-Generated Works and Alternative Protection Methodologies","authors":"Wonoh Kim","doi":"10.30582/kdps.2023.36.2.33","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.2.33","url":null,"abstract":"With the development of generative artificial intelligence technology, AI is emerging as a complete creative subject throughout the creative process. Therefore, in this paper, the concept of artificial intelligence-generated works (AGW) with minimal human intervention among AI-related creations is clearly defined through comparison with adjacent concepts, and then comprehensively summarizes the limitations of AGW protection in the interpretation of the current copyright law, and the international trend and overseas trends are briefly checked. Second, if it is difficult to protect by granting copyrights to AGW, first, consider how to leave it as a public domain, but also review the theoretical grounds for the theory of putting public domain and specific implementation methods thereof. Furthermore, we examine the limitations and problems of the theory of public domains, such as concerns about the possibility of abuse and false registration, as well as alternative solutions, to see what problems neglecting AGW, which is difficult to distinguish from human creation, can cause. Third, as a concrete protection methodology that has been discussed as an alternative solution, we look at the unification/dualization method and the method of subsuming within the copyright normative system or enacting a special law. In either way, the protection of AGW is premised on discriminatory protection, so this paper focuses on the theory of so-called ‘thin copyright protection’ and examines the key points that need to be reviewed in case of discriminatory protection.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117059987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.30582/kdps.2023.36.2.5
I. Kang
Article 22, Paragraph 2 of the Constitution stipulates that “the rights of authors, inventors, scientists, and artists are protected by law”. Despite being a provision that has continued since the Constitution's establishment, there has not been enough discussion in the constitutional academic community regarding its normative meaning and function, relationship with other fundamental rights, especially property rights, and concrete criteria for constitutionality review. Recently, in a case in which the Court reviewed the constitutionality of Article 9 of the Copyright Act, Article 22, Paragraph 2 of the Constitution was applied. As a result of this decision, discussions on the normative meaning of Article 22, Paragraph 2 of the Constitution and its standard for constitutionality review were triggered in the constitutional law academia. These discussions are mostly related to whether Article 22, Paragraph 2 of the Constitution has a unique meaning and performs an independent function, its normative meaning, and the concrete standard for constitutionality review. However, many ambiguous aspects remain. Therefore, this article examines the normative contents of Article 22, Paragraph 2 of the Constitution. The composition of this article is as follows. First, as a starting point, the meaning and limitations of the decision of the Court are examined. Second, by examining the US Supreme Court's doctrine about the copyrights clause and related discussions, this article seeks applicability of it to the interpretation of the Korean Constitution. Third, based on this, it critically reviews the recent discussions in constitutional law academia and offers the contents of Article 22, Paragraph 2 of the Constitution as a standard for constitutionality review.
{"title":"The Meaning and Content of Article 22, Paragraph 2 of the Constitution as a Standard for Constitutionality Review","authors":"I. Kang","doi":"10.30582/kdps.2023.36.2.5","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.2.5","url":null,"abstract":"Article 22, Paragraph 2 of the Constitution stipulates that “the rights of authors, inventors, scientists, and artists are protected by law”. Despite being a provision that has continued since the Constitution's establishment, there has not been enough discussion in the constitutional academic community regarding its normative meaning and function, relationship with other fundamental rights, especially property rights, and concrete criteria for constitutionality review. Recently, in a case in which the Court reviewed the constitutionality of Article 9 of the Copyright Act, Article 22, Paragraph 2 of the Constitution was applied. As a result of this decision, discussions on the normative meaning of Article 22, Paragraph 2 of the Constitution and its standard for constitutionality review were triggered in the constitutional law academia. These discussions are mostly related to whether Article 22, Paragraph 2 of the Constitution has a unique meaning and performs an independent function, its normative meaning, and the concrete standard for constitutionality review. However, many ambiguous aspects remain. Therefore, this article examines the normative contents of Article 22, Paragraph 2 of the Constitution. The composition of this article is as follows. First, as a starting point, the meaning and limitations of the decision of the Court are examined. Second, by examining the US Supreme Court's doctrine about the copyrights clause and related discussions, this article seeks applicability of it to the interpretation of the Korean Constitution. Third, based on this, it critically reviews the recent discussions in constitutional law academia and offers the contents of Article 22, Paragraph 2 of the Constitution as a standard for constitutionality review.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122019599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.30582/kdps.2023.36.2.77
Junu Park
Recently, as the size of the cultural industry has grown and cultural and informational products that utilize copyrighted materials have increased, there have been notable fair use rulings by t he U.S. S upreme C ourt ( such a s G oogle v . Oracle and Andy Warhol v. Goldsmith). Korea Supreme Court upheld an appellate court ruling that the use of nude photographs in satire posters was not fair use. Courts need to show both ① consistency in the application of fair use doctrine in past and recent rulings on new types of cases, and ② that all rulings are consistent with the purpose of copyright law. However, the diversity of types of copyrighted works and uses, and the nature of fair use as a general provision, make this difficult. In 2022, the Ninth Circuit ruled in the ‘Zervos Catalog Case’ that the use of copyrighted photographs was not fair use, and the Supreme Court denied certiorari. In this case, both plaintiff and defendant published catalogs of Pablo Picasso’s works, and the defendant had used some of the plaintiff’s copyrighted photographs. There were virtually no major issues, considering that the catalogs of the plaintiff and defendant were in direct competition and that the defendant had dead-copied the plaintiff’s work (photographs). However, the trial court’s decision, the appellate court’s decision, and the grounds in the petition for certiorari all show common problems in determining fair use. Therefore, this case is very useful to exemplify errors and issues in fair use applications. This article first introduces the ‘Zervos Catalog Case’ (II), compares and analyzes the rulings and grounds for certiorari petition (III), and examines the relationship between the first factor of fair use and other factors. Then, it argues ① that fair use is a tool for balancing the freedom of expression of both creator and the user (secondary creator or information producer), and for allocating the costs of creation between them, along with creativity (idea-expression dichotomy) and substantial similarity, ② that the Supreme Court in ‘Warhol Case’ showed the potential to address issues of balancing freedom of expression and of allocation of creation costs in relation to appropriation art, ③ that the second factor might be deleted from the fair use provision, due to the lack of its independent significance, and ④ that the fair use factors should be considered together, not separately, and a final conclusion should be reached in the light of the purposes of copyright law, which should be explicitly stated in Copyright Act (IV).
{"title":"Determining Fair Use and the Role of Transformative Use Test: On the Rulings in Wofsy v. De Fontbrune","authors":"Junu Park","doi":"10.30582/kdps.2023.36.2.77","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.2.77","url":null,"abstract":"Recently, as the size of the cultural industry has grown and cultural and informational products that utilize copyrighted materials have increased, there have been notable fair use rulings by t he U.S. S upreme C ourt ( such a s G oogle v . Oracle and Andy Warhol v. Goldsmith). Korea Supreme Court upheld an appellate court ruling that the use of nude photographs in satire posters was not fair use. Courts need to show both ① consistency in the application of fair use doctrine in past and recent rulings on new types of cases, and ② that all rulings are consistent with the purpose of copyright law. However, the diversity of types of copyrighted works and uses, and the nature of fair use as a general provision, make this difficult. \u0000In 2022, the Ninth Circuit ruled in the ‘Zervos Catalog Case’ that the use of copyrighted photographs was not fair use, and the Supreme Court denied certiorari. In this case, both plaintiff and defendant published catalogs of Pablo Picasso’s works, and the defendant had used some of the plaintiff’s copyrighted photographs. \u0000There were virtually no major issues, considering that the catalogs of the plaintiff and defendant were in direct competition and that the defendant had dead-copied the plaintiff’s work (photographs). However, the trial court’s decision, the appellate court’s decision, and the grounds in the petition for certiorari all show common problems in determining fair use. Therefore, this case is very useful to exemplify errors and issues in fair use applications. \u0000This article first introduces the ‘Zervos Catalog Case’ (II), compares and analyzes the rulings and grounds for certiorari petition (III), and examines the relationship between the first factor of fair use and other factors. Then, it argues ① that fair use is a tool for balancing the freedom of expression of both creator and the user (secondary creator or information producer), and for allocating the costs of creation between them, along with creativity (idea-expression dichotomy) and substantial similarity, ② that the Supreme Court in ‘Warhol Case’ showed the potential to address issues of balancing freedom of expression and of allocation of creation costs in relation to appropriation art, ③ that the second factor might be deleted from the fair use provision, due to the lack of its independent significance, and ④ that the fair use factors should be considered together, not separately, and a final conclusion should be reached in the light of the purposes of copyright law, which should be explicitly stated in Copyright Act (IV).","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123310777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.30582/kdps.2023.36.1.95
In order to support the transition to a data economy where data functions as an important product and commodity, it is necessary to establish an institution to encourage producing and opening quality datasets. Database right under the Copyright Act and the prohibition of unauthorized use of other’s achievements and illegal use of data under the Unfair Competition Prevention Act serves as potential institution for protection of datasets. Each of these has its own strengths and weaknesses and can play a role, but the prospects of the database right stand out in particular. This is because it has excellent clarity and predictability, protects against infringement by non-competitors, and separates the domains of monopoly and sharing appropriately and clearly. However, database right is not without room for improvement. First, there are unstructured datasets without searchability among training data for AI, and it is necessary to remove the element of searchability from the concept of database in order to include them in the scope of protection. Second, in order to compensate for the uncertainty of protection requirements, it is necessary to introduce the provision for presuming the establishment of ‘substantial part’ of the database when structural information on the arrangement or composition of materials is included. Third, it is necessary to reexamine the boundary between monopoly and sharing. For example, if the database is the sole source for a certain data, it may be desirable to introduce a compulsory licensing regime according to the FRAND standard.
{"title":"Improvement of Database Rights for the Development of Data Economy","authors":"","doi":"10.30582/kdps.2023.36.1.95","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.1.95","url":null,"abstract":"In order to support the transition to a data economy where data functions as an important product and commodity, it is necessary to establish an institution to encourage producing and opening quality datasets. Database right under the Copyright Act and the prohibition of unauthorized use of other’s achievements and illegal use of data under the Unfair Competition Prevention Act serves as potential institution for protection of datasets. Each of these has its own strengths and weaknesses and can play a role, but the prospects of the database right stand out in particular. This is because it has excellent clarity and predictability, protects against infringement by non-competitors, and separates the domains of monopoly and sharing appropriately and clearly. However, database right is not without room for improvement. First, there are unstructured datasets without searchability among training data for AI, and it is necessary to remove the element of searchability from the concept of database in order to include them in the scope of protection. Second, in order to compensate for the uncertainty of protection requirements, it is necessary to introduce the provision for presuming the establishment of ‘substantial part’ of the database when structural information on the arrangement or composition of materials is included. Third, it is necessary to reexamine the boundary between monopoly and sharing. For example, if the database is the sole source for a certain data, it may be desirable to introduce a compulsory licensing regime according to the FRAND standard.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"2004 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129764640","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.30582/kdps.2023.36.1.151
In 2011, the fair use provision was introduced in Korean copyright law. While it has been reformed once to make it more effective, and efforts have been made to establish so-called fair use guidelines to increse its predictability, doubts are raised as to whether fair use functions as a practical standard in actual copyright cases. It is time to point out its status quo and to observe how fair use has been operated by the Korean judiciary; this new legal instrument is intended to actively pursue a balance between the interests of creators and users/the public. Moreover, fair use may be understood as the legislator's delegation to the judiciary for exercising the quasi-legislative authority to create new and necessary copyright limitations/exceptions on a case-by-case basis. For an overview, it is indispensable to analyze the relevant precedents produced by various courts in Korea in the past 11 years. Unfortunately, there have been no cases in which the Supreme Court of Korea actively reviewed fair use. Nevertheless, district and high courts produced several decisions and judgments dealing with fair use (some of them gave considerable detail to insightful investigations in fair use). By finding commonalities and trends in these limited precedents and examining their problems, it is possible to determine and suggest what improvements fair use needs and how this relatively new and unfamiliar provision can be developed in the context of Korean copyright law. With this goal in mind, this paper analyzes the fair use-related precedents over the past 11 years in which fair use is reviewed or -at least- mentioned (see the collected cases in Appendix). Above all, it closely examines the attitude (modes of interpretation/ application) taken by the Korean courts on fair use and evaluates whether and to what extent fair use has been actively applied by the courts. Based on this analysis and evaluation, the problems of the current Korean fair use face are pointed out from various aspects. Finally, this paper proposes some ways for a sustainable fair use in our copyright environment, and suggests cooperation and respect between the judiciary and academia.
{"title":"Fair Use Under Korean Copyright Law: An Analysis of Case Law","authors":"","doi":"10.30582/kdps.2023.36.1.151","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.1.151","url":null,"abstract":"In 2011, the fair use provision was introduced in Korean copyright law. While it has been reformed once to make it more effective, and efforts have been made to establish so-called fair use guidelines to increse its predictability, doubts are raised as to whether fair use functions as a practical standard in actual copyright cases. It is time to point out its status quo and to observe how fair use has been operated by the Korean judiciary; this new legal instrument is intended to actively pursue a balance between the interests of creators and users/the public. Moreover, fair use may be understood as the legislator's delegation to the judiciary for exercising the quasi-legislative authority to create new and necessary copyright limitations/exceptions on a case-by-case basis. For an overview, it is indispensable to analyze the relevant precedents produced by various courts in Korea in the past 11 years. Unfortunately, there have been no cases in which the Supreme Court of Korea actively reviewed fair use. Nevertheless, district and high courts produced several decisions and judgments dealing with fair use (some of them gave considerable detail to insightful investigations in fair use). By finding commonalities and trends in these limited precedents and examining their problems, it is possible to determine and suggest what improvements fair use needs and how this relatively new and unfamiliar provision can be developed in the context of Korean copyright law. With this goal in mind, this paper analyzes the fair use-related precedents over the past 11 years in which fair use is reviewed or -at least- mentioned (see the collected cases in Appendix). Above all, it closely examines the attitude (modes of interpretation/ application) taken by the Korean courts on fair use and evaluates whether and to what extent fair use has been actively applied by the courts. Based on this analysis and evaluation, the problems of the current Korean fair use face are pointed out from various aspects. Finally, this paper proposes some ways for a sustainable fair use in our copyright environment, and suggests cooperation and respect between the judiciary and academia.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122078309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.30582/kdps.2023.36.1.5.
Yung-Myung Kim
Data collection and use are the beginning and end of machine learning. Looking at ChatGPT, data is making machines comparable to human capabilities. Commercial purposes are not naturally rejected in the judgment of fair use of the process of producing or securing data for system learning. The UK, Germany, and the EU are also introducing copyright restrictions for data mining for non-profit purposes such as research studies, and Japan is more active. Japan’s active legislation is the reason why there are no comprehensive fair use regulations like Korea and the United States, but it shows its willingness to lead the artificial intelligence industry. In 2020, a revision to the Copyright Act was proposed in Korea to introduce restrictions for information analysis. It will be able to increase the predictability for operators. However, the legislation of the amendment is expected to be opposed by the right holder and may take time. Therefore, it was examined whether machine learning such as data crawling and TDM corresponds to fair use through fair use under the current copyright law. In conclusion, it was considered that it may correspond to fair use, citing that it is different from human use behavior. However, it is questionable whether it is reasonable to attribute all exclusive negligence to the business operator by using the works of others according to fair use. The reason why the compensation system for profits earned by operators through the use of machine works generated by TDM or machine learning cannot be excluded from the possibility of serious consequences for a fair competitive environment.
{"title":"Data and Fair use","authors":"Yung-Myung Kim","doi":"10.30582/kdps.2023.36.1.5.","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.1.5.","url":null,"abstract":"Data collection and use are the beginning and end of machine learning. Looking at ChatGPT, data is making machines comparable to human capabilities. Commercial purposes are not naturally rejected in the judgment of fair use of the process of producing or securing data for system learning. The UK, Germany, and the EU are also introducing copyright restrictions for data mining for non-profit purposes such as research studies, and Japan is more active. Japan’s active legislation is the reason why there are no comprehensive fair use regulations like Korea and the United States, but it shows its willingness to lead the artificial intelligence industry. In 2020, a revision to the Copyright Act was proposed in Korea to introduce restrictions for information analysis. It will be able to increase the predictability for operators. However, the legislation of the amendment is expected to be opposed by the right holder and may take time. Therefore, it was examined whether machine learning such as data crawling and TDM corresponds to fair use through fair use under the current copyright law. In conclusion, it was considered that it may correspond to fair use, citing that it is different from human use behavior. However, it is questionable whether it is reasonable to attribute all exclusive negligence to the business operator by using the works of others according to fair use. The reason why the compensation system for profits earned by operators through the use of machine works generated by TDM or machine learning cannot be excluded from the possibility of serious consequences for a fair competitive environment.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126925750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.30582/kdps.2023.36.1.55
This study focuses on the concept of the ‘author’ in copyright law, particularly in the context of chance and indeterminacy music, where the composer intentionally excludes their authorship from the work. In copyright law, ‘creation’, required to become an author is generally understood as the act of “concretizing a particular idea or emotion into a creative external expression.” Applying this concept to chance and indeterminacy music, it caused the legal problem of denying the work’s copyrightability or destabilizing the traditional status of the author. Re-examining this through the theory of copyright justification, it was pointed out that the legal problem cannot be merged with the justification of the copyright system. Fundamentally, the limitation of the “idea-expression dichotomy” principle, a premise to the concept of the creator, was identified. Raising doubts as to whether it is truly valid for this principle to play a major role in the concept of the creator, this study proposed the application of Balganesh’s copyrightable causation theory as an alternative, and concluded that a normative judgment criterion must be used to determine whether a work qualifies as “creation” in order for law and art to be harmonized.
{"title":"Rethinking the Authorship of Contemporary Art in Copyright Law: Chance·Indeterminacy Music as a Case Study","authors":"","doi":"10.30582/kdps.2023.36.1.55","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.1.55","url":null,"abstract":"This study focuses on the concept of the ‘author’ in copyright law, particularly in the context of chance and indeterminacy music, where the composer intentionally excludes their authorship from the work. In copyright law, ‘creation’, required to become an author is generally understood as the act of “concretizing a particular idea or emotion into a creative external expression.” Applying this concept to chance and indeterminacy music, it caused the legal problem of denying the work’s copyrightability or destabilizing the traditional status of the author. Re-examining this through the theory of copyright justification, it was pointed out that the legal problem cannot be merged with the justification of the copyright system. Fundamentally, the limitation of the “idea-expression dichotomy” principle, a premise to the concept of the creator, was identified. Raising doubts as to whether it is truly valid for this principle to play a major role in the concept of the creator, this study proposed the application of Balganesh’s copyrightable causation theory as an alternative, and concluded that a normative judgment criterion must be used to determine whether a work qualifies as “creation” in order for law and art to be harmonized.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"43 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131169913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-30DOI: 10.30582/kdps.2023.36.1.193
J. Yoo
The Copyright Act has regulations on the free use of public works that guarantee the free use of public works by limiting the copyright of works produced with the government’s budget. According to the relevant regulations, the copyright of public works of the state or local governments is restricted, and the copyright of public works of public institutions under the Act on the Management of Public Institution is not restricted, but need to follow to government policies. As part of the policies, KOGL is being implemented to indicate the scope of free use and permission to use public works. Recently, a copyright infringement occurred due to an error in the application of KOGL. The case only dealt with whether the user infringed the copyright, but cases of misrepresenting the scope of the license due to a mistake of a public institution may continue to occur, and it could cause reliability problems for the actions of public institutions. On the other hand, the Act On Promotion Of The Provision And Use Of Public Data(‘Public Data Act’) regulates the provision and use of public data, which is a concept overlapping public works, and there is a concern about inconsistency with the free use system of public works under Copyright Act. In this background, this paper reviews the Seoul Central District Court's decision on April 9, 2021, compares and analyzes the free use of public works under the Copyright Act and the Public Data Act, and suggests implications and improvement.
{"title":"A Study on the Free Use of Public Works: Focused on the Seoul Central District Court’s 2019 Gadan 5207564 Decision","authors":"J. Yoo","doi":"10.30582/kdps.2023.36.1.193","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.1.193","url":null,"abstract":"The Copyright Act has regulations on the free use of public works that guarantee the free use of public works by limiting the copyright of works produced with the government’s budget. According to the relevant regulations, the copyright of public works of the state or local governments is restricted, and the copyright of public works of public institutions under the Act on the Management of Public Institution is not restricted, but need to follow to government policies. As part of the policies, KOGL is being implemented to indicate the scope of free use and permission to use public works. Recently, a copyright infringement occurred due to an error in the application of KOGL. The case only dealt with whether the user infringed the copyright, but cases of misrepresenting the scope of the license due to a mistake of a public institution may continue to occur, and it could cause reliability problems for the actions of public institutions. On the other hand, the Act On Promotion Of The Provision And Use Of Public Data(‘Public Data Act’) regulates the provision and use of public data, which is a concept overlapping public works, and there is a concern about inconsistency with the free use system of public works under Copyright Act. In this background, this paper reviews the Seoul Central District Court's decision on April 9, 2021, compares and analyzes the free use of public works under the Copyright Act and the Public Data Act, and suggests implications and improvement.","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116965351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.30582/kdps.2022.35.4.179
Gunhee Kim
Copyright law continues to change its contents according to the process of the development of media technologies, which have also been changing the form of use of works protected by copyright law. This is results from the digital transformation; most of the content including copyrighted works are changed into digital forms. Just as the Printing Revolution in the past brought the era of reproduction, it leads to the era of transition to the ‘Digital’ Revolution. As one of phenomena of transformation, the form of using copyrighted works is changing from downloading for the long-term use to streaming for temporary use. Of course, while digitized works are mainly used online rather than offline, the current copyright law has a large number of provisions based on the traditional/classical use of works. Copyright infringement in online space can bring more complex problems than expected due to the development of digital technologies. Despite the new technologies used in the online space, our copyright law does not provide an appropriate answer to whether the use of copyrighted works constitutes an infringement or whether the interests of copyright holders and users are reasonably balanced. There is a gap between reality and law, where various uses of digitized works matter, and this paper will look at copyright limitations in consideration of using digital content, which has become common due to the development of digital technology. The Korean Copyright Act basically stipulates the rights conferred on copyright holders, while exercising those rights of copyright holders is restricted for securing rights of users who use works. The history of copyright law is nothing but a history of constant tug-of-war between rights holders and users, and we should examine whether the current copyright limiations are undertaking appropriate functions in the digital era for the purpose of balancing between rights holders and users. Although they are largely divided into limitations for the public interest and limitations for user convenience (private interest), the purpose of the user convenience will eventually contribute to promote access and use of works and lead to the improvement of the cultural industry. On the other hand, as a result of reviewing fair use (Article 35-5 of the Copyright Act), copyright law is ultimately characterized as a law for cultural development, and it is on its way to adapt itself to the rapidly changed environment of content consumption in response to technological development. Rather than simply adjusting profits on the premise of the conventional confrontation structure of ‘rightsholder versus user’, it is necessary to keep in mind that the complex relationship between various subjects surrounding the efficient use of digital works is well understood and controlled. In the reality in which the possibility of copyright infringement is increasing when using digital works, copyright limitations do not seem to balance users and rightsholde
{"title":"Review of Copyright Limitations under the Copyright Act in the Digital Age","authors":"Gunhee Kim","doi":"10.30582/kdps.2022.35.4.179","DOIUrl":"https://doi.org/10.30582/kdps.2022.35.4.179","url":null,"abstract":"Copyright law continues to change its contents according to the process of the development of media technologies, which have also been changing the form of use of works protected by copyright law. This is results from the digital transformation; most of the content including copyrighted works are changed into digital forms. Just as the Printing Revolution in the past brought the era of reproduction, it leads to the era of transition to the ‘Digital’ Revolution. As one of phenomena of transformation, the form of using copyrighted works is changing from downloading for the long-term use to streaming for temporary use. Of course, while digitized works are mainly used online rather than offline, the current copyright law has a large number of provisions based on the traditional/classical use of works. Copyright infringement in online space can bring more complex problems than expected due to the development of digital technologies. Despite the new technologies used in the online space, our copyright law does not provide an appropriate answer to whether the use of copyrighted works constitutes an infringement or whether the interests of copyright holders and users are reasonably balanced. There is a gap between reality and law, where various uses of digitized works matter, and this paper will look at copyright limitations in consideration of using digital content, which has become common due to the development of digital technology. The Korean Copyright Act basically stipulates the rights conferred on copyright holders, while exercising those rights of copyright holders is restricted for securing rights of users who use works. The history of copyright law is nothing but a history of constant tug-of-war between rights holders and users, and we should examine whether the current copyright limiations are undertaking appropriate functions in the digital era for the purpose of balancing between rights holders and users. Although they are largely divided into limitations for the public interest and limitations for user convenience (private interest), the purpose of the user convenience will eventually contribute to promote access and use of works and lead to the improvement of the cultural industry. On the other hand, as a result of reviewing fair use (Article 35-5 of the Copyright Act), copyright law is ultimately characterized as a law for cultural development, and it is on its way to adapt itself to the rapidly changed environment of content consumption in response to technological development. Rather than simply adjusting profits on the premise of the conventional confrontation structure of ‘rightsholder versus user’, it is necessary to keep in mind that the complex relationship between various subjects surrounding the efficient use of digital works is well understood and controlled. In the reality in which the possibility of copyright infringement is increasing when using digital works, copyright limitations do not seem to balance users and rightsholde","PeriodicalId":350441,"journal":{"name":"Korea Copyright Commission","volume":"473 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122741392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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