Copyright Act, last amended by Act No. 12137

(1) Article 102 provides safe harbor for intermediaries from third party copyright infringement. The provision was amended twice in 2011 first to reflect the Korea-EU FTA and then the Korea-US FTA. EU Directive 2000/31/EC Section 4 “Liability of intermediary service providers” was almost exactly reproduced verbatim in the Intellectual Property chapter of the Korea-EU FTA, and the intellectual property chapter of the Korea-US FTA adopted the structure of DMCA safe harbor provisions. Therefore, it is no coincidence that the structure of Article 102 is very similar to that of EU Directive 2000/31/EC and DMCA. Paragraph (1) sets out specific conditions necessary for safe harbor for different types of Online Service Providers (OSPs). It classifies OSPs into four classes: mere conduits (subparagraph 1), caching (subparagraph 2), hosting (subparagraph 3), and information location tools (subparagraph 4). Paragraph (2) provides another safe harbor, stating that where it is technologically impossible for an OSP to take measures under paragraph (1), the OSP shall not be held liable. However, the court rarely, if ever, accepted a defense based on the provision. Paragraph (3) announces that OSPs do not have any general obligation to monitor. In spite of the provisions, there is much criticism on the court’s rigidness and lack of reasoning in application of safe harbors for intermediaries (see below). It seems the courts do not clearly discern elements of copyright infringement and conditions for enjoying safe harbors. That is, the courts tend to hold intermediaries liable if they do not meet the safe harbor >conditions instead of engaging in an independent analysis of liability.

(2) Article 103 sets out a notice and takedown system partially similar to DMCA. If a person claims copyright infringement and demands an OSP to suspend the reproduction or transmission of the works, the OSP should immediately comply and inform the claimant and the alleged infringer of such suspension. The reproducer or transmitter may request restoration by showing that acsuch reproduction or transmission was lawful. The OSP will be exempt from liabilities arising from the claimed copyright infringement by complying with the procedure in Article 103. Before the Copyright Act amendment in 2011, the OSP “may” be exempted or get its liability reduced. “Reproduction and transmission” is the term of art used by the legislators to describe the act of making material available online for downloading. The crucial difference with DMCA is that Korean copyright law requires on-demand takedown not as a requirement for qualifying for the safe harbor but as an unconditional requirement. The OSP cannot choose to deviate from the notice and takedown procedure.

(3) According to Article 103-3, a right holder may request an OSP for information necessary to take civil or criminal legal action against an alleged infringer such as the infringer’s name and address. When the OSP refuses, the person may request the Minister of Culture, Sports and Tourism to issue an order to the OSP. If the OSP does not comply with the Minister’s order to provide the information, the OSP will be imposed of a civil fine not exceeding 10 million won under Article 142(2)1. This was newly introduced to the Copyright Act in 2011.

(4) Article 104 is a unique provision to regulate special types of OSPs – mainly P2P and web-hard (cyber-lockers) service providers . It is unique and unprecedented in that it imposes direct obligation on the OSPs to implement the necessary measures for filtering out unlawful material. When there is a request by a right holder, those special types of OSPs must implement measures including filtering. The Enforcement Decree of the Copyright Act defines those necessary measures as: 

Any OSP failing to implement such measures will be imposed of a civil fine not exceeding 30 million won under Article 142(1). Moreover, the OSP may be subject to cancellation or suspension of its business registration under the Telecommunications Business Act (see below). The court has been very strict in allowing the safe harbor of Article 102 to those special types of OSPs (see below). Constitutional complaint was raised, but the Constitutional Court found the provision constitutional (see below).

(5) In 2009, the Copyright Act introduced the notorious three-strike (or gradual response) regime. Article 133-2 and 133-3 prescribe a system where a subscriber, or an online bulletin board, which received more than three warnings is subject to suspension of its account up to six months. The suspension orders to OSPs are made by the Minister of Culture, Sports and tourism, which is an administrative agency. Those failing to abide by the provision – intermediaries - will be imposed of a civil fine not exceeding 10 million won under Article 142(2)4 and 5. This provision is on the brink of infringing on constitutional rights of the citizens as it may amount to an administrative censorship where no court review is involved.