Friday, October 21, 2016

Changes Induced by Open-Ended Fair Use Clause: Korean Experiences

[Also posted at http://infojustice.org/archives/37215]

South Korea has a civil law tradition based on the modern European civil law systems. The civil law tradition was one of the obstacles when civil societies and lawmakers tried to introduce flexible and open-ended fair use exceptions into the Korean Copyright Act (“KCA”) in 2005 and 2009. According to opposers, the fair use doctrine, developed under the rules of equity in common law countries such as the U.S., did not fit with the Korean civil law system.


The Korea-US FTA (“KORUS”) cleared this obstacle, but KORUS does not mandate introduction of the flexible fair use provision. It only leaves a margin for it with two restrictions: in connection with the reproduction right expanded to cover “temporary storage in electronic form;” and qualifying the fair use exception by referring to the three-step test (Footnote 11 of Article 18.4(1) of KORUS). So the Korean fair use clause was drafted by combining the US style fair use (17 U.S.C. §107) and the three step test.


Before the enactment of the fair use clause, the most commonly relied-upon defense to a claim of copyright infringement were the specific limitations for quotation and private use. However, both were codified in restrictive terms and courts interpreted them narrowly. First, to be a permitted quotation, a so-called “master-servant relationship” has to be met. The condition of master-servant relationship was developed by the Korean Supreme Court from 1990s modeled on Japanese case laws. It requires that “the quoting work is superior, while the quoted work is subordinate.” Therefore, reproducing the whole or a substantial amount of a work is excluded from the permitted quotation. The Supreme Court later relaxed the master-servant relationship by legitimating reproduction of thumbnail images by search engines (2005Do7793, February 9, 2006). However, the scope of quotation is still restrictive enough to ban the reproduction of entire work e.g., for purposes of obtaining a marketing approval from food and drug authorities (see Lyprinol case below). Second, under KCA, the private use exception is only allowed when the use is not-for-profit and takes place in a limited space like the home, excluding every use on the Internet. Furthermore, the Korean courts have long denied a general, expansive interpretation of specific limitations such as quotation and private copying. The open-ended fair use clause induced, albeit slowly, changes the judicial practices.


Fair-Use Clause in Korean Copyright Act


The fair use clause is codified in Article 35ter KCA, which consists of two paragraphs. The first paragraph sets forth circumstances where general exceptions for fair use are applied and the second paragraph provides elements to be considered in determining whether a certain use is fair.


Article 35ter (Fair Use of Works)
(1) Notwithstanding Articles 23 to 35bis and 101ter to 101quinquies,[1] it is permissible to use works [for news reporting, criticism, education, research, etc][2] when such use does not conflict with the normal exploitation of works and does not unreasonably prejudice the legitimate interests of rights holders.
(2) In determining whether an act of using works falls under Paragraph (1), such factors as provided in the following subparagraphs shall be considered:
1. The purposes and characters of the use, including whether or not such use is for profit;
2. The category and nature of the works;
3. The amount and substantiality of the portion used in relation to the whole work; and
4. The effect of the use on the existing or potential market or value of the work.
[Article added on December 2, 2011 and amended on March 22, 2016]


Lyprinol and Rosehip - Photocopying an Academic Article for a Marketing Approval of Functional Food


In a criminal case, the Korean Supreme Court ruled that reproducing and submitting a medical article to the Korea Food and Drug Safety Authority (KFDA) constitutes a copyright infringement (2011Do5835, February 15, 2013). In upholding the appeal court’s sentence of a fine of KRW two million (approximately USD 2,000), the Supreme Court found that photocopying an entire medical article and submitting it to KFDA when applying for a marketing authorization does not fall within either the quotation or the private use exception.


lyprinol-logo.pngThis case involves a health/functional food, called Lyprinol, a natural marine lipid extract having an anti-inflammatory effect. From 2001, Pharmalink International Limited of Australia (“Pharmalink International”) sold Lyprinol through SYS Pharm, an exclusive distributor in Korea. SYS Pharm, before obtaining the KFDA’s approval, requested a clinical study by seven medical doctors, and the result of study they conducted on 54 arthritic patients for two months was published in a medical journal, called New Medical Journal, in May 2002. When the contract between Pharmalink International and SYS Pharm terminated in May 2008, Pharmalink International established its own Korean branch to import and sell Lyprinol (effective May 22, 2008). In August 2008, Pharmalink Korea applied for KFDA’s approval of the product-specific health/functional food. Pharmalink Korea copied the whole article without permission of the authors or the journal publisher and included it in its KFDA submission. Against this, the CEO of SYS Pharm filed complaints to the Prosecutor’s Office on August 14, 2009 and November 4, 2009.


If the unauthorized reproduction of an academic or medical paper in order to obtain marketing approval from food and drug authorities is entirely banned by the copyright regime, it will lead to unintended consequences: unduly over-protection of test data on pharmaceuticals; and extension of the term of data exclusivity to life plus seventy years. Without considering this impact, the Korean Supreme Court dealt with this case from the microscopic legal interpretation of KCA. First, the Supreme Court made clear that the principle of general fair use was not allowed in the previous KCA as it only provided individual cases where the copyright was limited. Concerning the pleading based on the quotation exception, the Supreme Court repeated the precedent ‘master-servant relationship.’ And the private use exception was also rejected because the court viewed the reproduction of a medical article for a marketing approval was a for-profit use, and did not take place in a limited space like the home.


This ruling has far-reaching implications to access to medicines, because it delays generic entry. But the flexible fair use clause may play a role in addressing the problem, as shown in Rosehip case.


hyben_logo_APS.png The factual background of the Rosehip case is the same as that of the Lyprinol case. Hyben-Vital of Denmark has produced rosehip, an ingredient in skincare and having an anti-inflammatory effect. A Korean exclusive seller (whose name is unknown) submitted a medical article published by Scandinavian Journal of Rheumatology Vol. 34, No.4 (2005), to KFDA for obtaining an approval of the functional ingredient of the health/functional food in 2007. The article was drafted by three doctors upon request of the study of Hyben-Vital. Another Korean company (whose name is also unknown) planned, in 2012, to import a rosehip ingredient from Chile and downloaded the whole article on the Internet and submitted it to KFDA for a functional ingredient approval on June 5, 2012. Against this, the authors, having known the unauthorized reproduction of their article in August 2013, granted Hyben-Vital a power to file a criminal complaint, which was in turn transferred to the Korean exclusive seller. The formal complaint was filed in April 20, 2015.


In August 18, 2016, the Suwon district court found that the act of downloading and printing the medical article by the accused breached the authors’ reproduction right, and its submission to KDFA infringed the authors’ distribution right (2016GoJung432). Nonetheless, the court viewed that the accused was allowed under KCA to quote the article in a process for obtaining KFDA’s marketing approval in consideration of fair use clause under Article 35ter and the public nature of the academic article. Also, the Rosehip court held that the act for obtaining marketing approval is not for-profit. Unlike the Lyprinol court, the Rosehip court narrowly interpreted “for profit purpose” as referring to “for purposes of obtaining illegal profit paid directly from infringing act.”


Online Use of News Articles and Photos


apollo17_earth.jpgAn NGO called the Citizens Action Network (CAN) made use of photos in several blog articles at http://actiontoday.kr. The blog articles were drafted by volunteer citizens and activists to encourage people to act for public values such as democracy, sharing, peace and protection of the environment. They chose the photos by searching images on the Internet. (While some were actually copied, others were linked - copyright infringement of linking, directly or indirectly, has been entirely denied by the Korean supreme court in at least four cases). In 2011, a Korean agency of Getty Images sent CAN a warning letter alleging that ten photos used in the blog articles infringed their copyrights, including this and this, and demanded  a monetary settlement of around KRW 1.5 million, which was calculated based on their own price schedule. In this course, the agency threatened CAN a possible civil litigation claiming damages of ten times the price schedule. Surprisingly enough, one of the photos the copyright holder alleged was the image of planet earth, which is the same picture available on NASA web site.


Finding CAN guilty, the Seoul district court did not apply the open-ended fair use clause because the infringement occurred prior to the its enactment (Seoul Western District Court, 2012GoJung1591, November 1, 2012). Furthermore, the court rejected the CAN’s pleading that the photos were used for educating people and held that such a use conflicted with normal exploitation of copyrighted pictures. Fortunately, however, the court suspended a sentence of KRW 7 million by taking into account of the non-for-profit nature of the blog and CAN’s swift deletion of all of the photos upon receiving the warning letter.


Since the enactment of fair use clause, Getty Images and copyright holders did not stop widespread threatening copyright infringement against users who have unconsciously used photos available on the Internet.


In August 2014, another Korean agency of Getty Images alleged copyright infringement by an NGO called Women Link for using an image in a blog posting (see below). The blog dealt with the social problem of the career disruptions of female workers, and included an interview with a CAD designer (this was the reason for use of the photo at issue). The copyright holder asked a money settlement of KRW 1.2 million, sixfold higher than price schedule. Soon after Women Link refused the proposed settlement, the agency submitted a criminal complaint. But in December 2014, the prosecutor’s office decided not to prosecute by applying the fair use clause (Seoul Western District Prosecutors Office, 2014HungJe47463, December 22, 2014). The prosecutor found that the photo is copyrightable (Open Net, representing Women Link, argued lack of intellectual creativity in the photo) and Women Link had constructive knowledge that the images had been made available online without Getty Images’s copyright notice, and had been shared without the copyright holder’s authorization. Nonetheless, the prosecutor decided the use of image by Women Link was fair use because: (1) the purpose of use was non-for-profit; (2) the used image was small and lower quality than original picture (a sort of thumbnail image as the size of the used image was as small as 1/70 of the original); and (3) there was little likelihood of damage to the value the of copyrighted images.


viewview


In February 2014, an unprecedented accusation of copyright infringement was filed with the Prosecutor’s Office. It involved 270 lawmakers, as many as three-fourths of total members of the Korean National Assembly. This action was planned by consumer groups to alert misuse of criminal enforcement of copyright holders. The lawmakers were accused of habitually re-posting news articles they regarded relevant to their legislative activities on their own websites. But in July 2014, the Prosecutor’s Office cleared the suspicion by applying the fair use clause: the re-posted news articles on the legislators’ websites were not in competition with commercial news services, and had little impact on the existing or potential market of copyright works.


These were landmark decisions by the criminal authority given that KORUS mandates South Korea to “strengthen enforcement of IPRs in Korea” and establish “a joint investigation team for an effective enforcement against online piracy.” It didn’t take long to get the same conclusion from the court.


In June 25, 2015, the Seoul Western District Court upheld the fair use defence again in a copyrighted photo case. This ruling was supported by the appeal court (Seoul Western District Court, 2015Na33407, November 26, 2015). In this case, the copyright holder was Image Making, one of the notorious copyright trolls in Korea. The defendant was a peace movement NGO called Without War. For using a photo of slice raw flatfish in a blog posting  (see below), Image Making demanded, in a civil litigation, damages of as much as KRW 2 million (according to its price schedule, the retail price was KRW 300,000).
In upholding all of the lower court’s reasoning, the appeal court found that the use was a fair use under Article 35ter. Concluding non-infringement, the court considered such factors as: (1) the purpose of the use was not-for-profit, to encourage a vegetarian diet; (2) the photo used in the blog was not substantial; (3) the potential impact on the market or business of the copyrighted work would be small because the main customers of the photo at issue would be advertising companies and restaurant businesses; (4) there was no copyright notice on the photo, making difficult for Without War to recognize the existence of copyright; (5) the degree of creativity of the photo was low; and (6) the used photo was of lower quality than the original. (The lower court first ordered a reconciliation of money settlement that the defendant pays half of the retail price (KRW 150,000). But OpenNet, representing the defendant, Without War, raised an objection to this order and asked the court to render a formal decision.


ss.png


The fair use clause is not a universal key for exoneration from copyright infringement. In other cases, the Korean courts did not buy the fair use defense. For instance, when a liquor wholesaler posted news articles for the exclusive use of its employees, the court held that it conflicted with the normal exploitation of works and unreasonably prejudice the legitimate interests of copyright holders (Seoul Central District Court, 2013Na36100, February 11, 2014). Furthermore, when a company produced audiovisual materials for an online lecture in which textbooks sold by the plaintiff were used, the court did not view it fair use because the textbooks were used for-profit and their potential market value would be substantially undermined (Seoul Central District Court, 2012GaHap541175, February 12, 2015). However, it is fair to say that the open-ended fair use clause has guided courts to recover the broken balance between the right holders and users.




[1] Articles 23 to 35bis contain specific limitations of copyright in general and Articles 101ter to 101quinquies contain specific limitations of copyright in computer programs. They include limitations for internal use in legislative and administrative bodies and in judicial proceedings, free use of government works, quotation, public performance and broadcasting for non-profit purposes, private use, use in libraries and educational institutions, use for visually impaired persons, and decompilation of program codes.
[2] The non-exhaustive list of purposes of use in brackets was deleted in the amendment of March 22, 2016 for fear of a restrictive mis-interpretation that fair use is allowed only for the listed purposes. The English text of Korean Copyright Act is available at the website of the Ministry of Government Legislation, which is full of rubbish translation of original Korean text. More accurate English version is found at WIPO. But this also contains translation errors. First, it translates the bracketed language as if it is exhaustive. Second, the English text of WIPO may cause a confusion in the relationship between the fair use clause and the other provisions for specific limitations (Articles 23 to 35bis and 101ter to 101quinquies). From the translated text, it appears that the open-ended fair use clause is not applied in certain cases specified in Articles 23 to 35bis and 101ter to 101quinquies. But under Korean text it is clear that the fair clause does apply.

Wednesday, March 11, 2015

US Ambassador confirmed patent linkage under FTA includes biologics

One of the controversies in implementing the KorUS FTA is whether biological products are subject to the patent linkage obligation of the KorUS FTA. The debate was provoked by the Korean government's proposal which applies the patent linkage to biologics. But it is unclear if the FTA text imposes such an obligation. 

Chapter 18 (IPRs) has no definition of pharmaceutical products for the patent linkage, only the provision of patent term extention defining a "new pharmaceutical product" as "a product that at least contains a new chemical entity that has not been previously approved as a pharmaceutical product in the territory of the Party." See Article 18.8:5 FN21. In contrast, Chapter 5 (Pharmaceuticals and Medical Devices) makes clear that "pharmaceutical product or medical device means a pharmaceutical, biologic, medical device, or diagnostic product."

Civil societies, activists and even patent attorneys and industries supporting the FTA opposed the inclusion of biologics. When I witnessed in the Korean National Assembly, I pointed out the TPP proposal of 12-years data exclusivity for biologics.

But the members of the National Assembly finally bought the goverment's proposal. Main reason was the US' calling for the inclusion of biologics. The US Ambassador Lippert sent a letter to the Korean Minister of Food and Drug Safety and requested protection of biologics under the patent linkage system. He also confirmed that the US seeks the same protection in TPP. His letter was referred to by the National Assembly members.
 
* South Korea has to fully implement the patent linkage in three years from the effective date of the FTA, meaning from March 15, 2015. The implementation act (amendment of the Pharmaceutical Affairs Act) passed the National Assembly on March 3, 2015.

**Scanned copy of the letter of Ambassador of the U.S. to the Korean Minister of Food and Drug Safety

Sunday, December 01, 2013

TPP and Withdrawn Proposals of the US in the negotiation of the US-Korea FTA

The followings were demanded by the U.S. negotiators but eventually withdrawn during the negotiation of FTA with South Korea.
  • Patent term extension due to an approval delay: The US demanded a patent term extension to compensate delay of a marketing approval process in “another” Party.
  • Recognition of patent term extension: When a Party introduces a system in which a patent is registered on the basis of a substantial patent examination conducted by another Party, the extended patent term provided by the another Party is also recognized in the Party.
  • Patentable subject matter: The US demanded to include “diagnostic, therapeutic, and surgical methods for the treatment of humans or animals for the subject matter of patent (See Article QQ.E.1:3(b) of the leaked TPP IP Chapter).
  • Restrictions to the grounds for issuing a compulsory license of the patent invention: The US demanded an unauthorized use of patented invention be permitted only to remedy anticompetitive practices, for public non-commercial use or national emergency or extreme urgency.
  • Patent term extension due to a granting delay: For determining an unreasonable delay in the granting of a patent, the initial demand of the US was “two years” after a request for examination of the application has been made. In the final FTA text, it is “three years.” (Compare “two years” in Article QQ.E.XX (before QQ.E.13) of the leaked TPP IP Chapter and “three years” in Article 18.8:6(a) of the US-Korea FTA (http://www.ustr.gov/sites/default/files/uploads/agreements/fta/korus/asset_upload_file273_12717.pdf)
  • Scope of right of trademark: The US demanded to broaden the scope of trademark right to cover “related goods or services.” (it’s not clear from the negotiators’ notes but I guess this is not only for the well-known mark.)
  • Triple damages: See Article QQ.H.4.Y US' proposal of "up to theree times the amount of the injury found or assessed." The US also demanded additional damages ("injury to the right holder" plus "profits of infringer")
  • Prohibition of parallel importation of copyrighted work: See Article QQ.G.3 of the TPP IP Chapter.

Wednesday, November 06, 2013

Trade Agreement and Mandatory Human Rights Impact Assessment

Evaluation of trade agreements have been made in economic terms. But the impact of trade agreements is not limited to economic life. They have human rights dimensions in many aspects. For instance, trade agreements containing the TRIPS-plus provisons may affect the right to access to essential medicine, the right to food and more broadly the right to science and culture, which is protected by the Article 27(1) of the Universal Declaration of Human Rights. So the UN human rights bodies have tried to develop and propose human rights impact assessments (HRIA) of trade agreements (See The Future of Human RightsImpact Assessments of Trade Agreements).

The recent move of the National Assembly of South Korea to mandate the HRIA was influenced by the efforts of the UN human rights bodies. The lawmaker, Mr. Buh, proposed a bill to amend the Law on the Treaty-Making Process and Implementaion of Trade Agreements (Trade Process Act), which includes an amendment making compulsory the HRIA on every trade pacts that are likely to be agreed upon with trade partners. For doing so, the Trade Minister has to ask the National Human Rights Commission to conduct the HRIA on the trade pact and to reflect in full the conclusion of the HRIA and the opinions of the National Human Rights Commission. In additon, the HRIA report shall be made biannually for the trade pacts which have already come into effect and submitted to the National Assembly.

The bill contains lots of amendments, some are controversial. And it is too early to expect the fate of the bill since it was proposed just two weeks ago. However, I can say that the chance of the mandatory HRIA provision passing through the National Assembly is relatively high.

If you want to show your support of the bill, please contact me (hurips at gmail.com) or the Office of Mr. Buh (babydo at hanmail.net).

Wednesday, March 27, 2013

National Human Rights Body Recommends Abolishing Three-Strike-Out Rule



Today the National Human Rights Commissionof S. Korea published a special report on information human rights. It is the first report comprehensively discussing the progress of information and communication technologies in terms of human rights and providing recommendations for the protection, promotion, and enjoyment of information human rights. In this report, the information human rights covers four different categories: rights to information privacy; freedom of expression online; rights to access to information; and rights to culture and information.

Among other things, the report recommends the followings for the promotion of the right to culture and information:

  • Introduction of comprehensive and open-ended fair use provisions in the Copyright Act;
  • Legislation of users’ right capable of offsetting abusive enforcement of copyright;
  • Guaranteeing the reuse and access of the general public to publicly-funded information and culture;
  • Balanced harmony of intellectual property and the right to culture and information;
  • With the progress of ICTs, the right to culture and information gains the growing importance for the users to access to information and create and distribute new culture;
  • As recommended by each Member States in the 12th ASEM Human Rights Seminar, IPRs and excessively stringent protection of copyright may jeopardize the enjoyment of human rights and impede the creativity in online environment and thus the public interests should be taken into accounts when the IPRs are to be revised or new provisions are to be introduced.
  • The right of author is subject to the human rights aspects, IPRs should be protected in a balanced way that users can claim their rights.

  • Regulations such as copyright three-strike-out rules, technological protection measures, and game shut-down, the regulatory effectiveness of which is doubtable and may restrict the right to culture and information, need to be examined in depth to see if they infringe other constitutional rights and, if necessary, such regulations are to be revoked.


The 212-pages report is downloadable here and press release of the NHRC is here (both are in Korean and official English translation will be available in May)

Sunday, October 24, 2010

Facts and Figures on Copyright Three-Strike Rule in Korea


Notice: I think I have to clarify that the thirty-one individuals mentioned below were not suspended without any prior notice from the Copyright Commission.


Some articles referring to my blog indicated they were. For instance, here and here.

When I said no prior notice for the Commission’s recommendation, I meant to put an emphasis on the difference in the statutory requirement between the track by the Minister’s order and one by the Commission’s recommendation.

Currently, the Korea Copyright Commission has its own bylaw which imposes at least three times prior notice upon the recommendation of suspension. The thirty-one individuals had been suspended according to this bylaw. However, the Commission is free to amend the bylaw and switch to one-strike system.



1. Two Tracks to Implement the Three-Strike Rule


A. Suspension of a User Account or Shutting-Down of a Web Site by an Order of the Minister

Under Article 133bis of the Korea Copyright Act, the Minister of Culture, Sports and Tourism (“the Minister”) may, after deliberation by the Copyright Commission, order an ISP to take measures:
·         To suspend for a period shorter than six months an account provided by the corresponding ISP for a user when the user has been warned at least three times by the Minister in connection with an unauthorized reproduction or transmission of the copyright infringing material (Para 2); or
·         To shut down for a period shorter than six months a web site (“a bulletin board”) that has been ordered at least three times by the Minister to delete or block copyright infringing material (Para 4)

B. Suspension of a User Account by a Recommendation of the Commission

According to Article 133ter of the Copyright Act, the Copyright Commission has an authority to recommend an ISP to take corrective measures including:
·         Issuing a warning against a reproducer/ transmitters of copyright infringing material (Para 1(i));
·         Deletion or cessation of transmission of copyright infringing material (Para 1(ii)); and
·         Suspension of an account provided by the corresponding ISP for a user when the user has repeatedly reproduced or transmitted copyright infringing material (Para 1(iii).

Unlike the suspension by the Minister’s order, a suspension by the Copyright Commission' recommendation can be made without requiring that the unauthorized reproduction or transmission takes place at least three times. Nor is required a prior notice. When the Copyright Commission determines the user’s unauthorized activity being repeated, the Commission may recommend the corresponding ISP to suspend the user’s account. In this regard, the suspension by the Commission’s recommendation is neither a three-strike rule nor a notice-suspension system. The Korean government also does not call this a three-strike rule. But the reason is quite different. It is not a three-strike rule because the suspension is a voluntary measure taken by an ISP (See page 7 of APAA Annual Report 2009 (Korea)).

2. How Many Individuals or Web Sites Have Been Suspended?

The legislation was passed on April 22, 2009 and came into force on July 24, 2009. By the end of July 2010, there has been no suspension against an individual user or a web site by the order of the Minister. However, the Copyright Commission has recommended ISPs to suspend accounts of copyright infringing users in thirty-one cases, and all of the individual users have been disconnected to the corresponding ISPs for less than one month.

Recommendations by the Copyright Committee
(Source: Report of the Minister to the National Assembly, September 2010)

Warning
Deletion or Blocking
Suspension of User Account
Total
July 2009
0
0
0
0
August 2009
0
0
0
0
September 2009
2,701
2,524
0
5,225
October 2009
3,750
3,650
0
7,400
November 2009
3,694
3,552
0
7,246
December 2009
2,275
2,248
0
4,523
January 2010
2,555
2,500
0
5,055
February 2010
2,518
2,444
0
4,962
March 2010
3,170
3,128
0
6,298
April 2010
3,520
3,505
8
7,033
May 2010
2,837
2,828
11
5,676
June 2010
3,387
3,383
0
6,770
July 2010
2,471
2,447
12
4,930
Total
32,878
32,209
31
65,118

Compliance by ISPs with the Commission’s Recommendations
Recommendations
Compliance
Non-Compliance (by only one ISP)
65,118
65,078
40 (Warning: 20 / Deletion or Blocking: 20)

3.  How Many Materials Have Been Infringed by the Repeat Infringers?

In total, by the thirty-one individuals, 544 pieces of computer game software, 216 pieces of motion pictures, 113 pieces of cartoons and 23 pieces of TV shows have been transmitted through ten ISPs. Interestingly, no musical works were involved. On average, 22.67 pieces of computer games (24 users), 10.8 pieces of motion pictures (20 users), 22.6 pieces of cartoons (5 users), and 23 pieces of TV shows (one user) have led up to the temporary disconnection.

4. Potential Disconnection by the Minister’s Order or the Commission’s Recommendation

As of September 2010, additional twenty-six individuals are detected as repeat infringers by the Copyright Commission. Further, the Minister has, pursuant to Para 1(i), Article 133bis, ordered ISPs to issue warnings against the same individuals more than twice in twenty-one cases.

Order by the Minister
Date
Warnings
Deletion or Blocking
Suspension
Total
March 11, 2010
121
38
0
159
June 10, 2010
154
3
0
157
Total
275
41
0
316


Legal Texts (Official Translation by the South Korean Government)

1. The Copyright Act (Available at copyright.or.kr)

Article 133-2 (Order to Delete Illegal Copies through Information and Telecommunications Networks, Etc.)
(1) In the case where copies or information infringing on copyrights and other rights protected under this Act or programs or information circumventing technological protection measures (hereinafter referred to as "illegal copies, etc.") are interactively transmitted through information and telecommunications networks, the Minister of Culture, Sports and Tourism may order online service providers to take any of the following measures as prescribed by Presidential Decree after deliberation by the Commission:
1. Issuing warnings against reproducers/interactive transmitters of illegal copies, etc.; and
2. Deletion or suspension of interactive transmission of illegal copies, etc.
(2) If a reproducer/interactive transmitter who received three or more warnings as prescribed under Subparagraph 1 of Paragraph (1) of this Article interactively transmits illegal copies, etc., the Minister of Culture, Sports and Tourism may order online service providers to suspend the account [which refers to accounts on usage rights used by online service providers to identify and manage users (excluding email exclusive accounts) and includes other accounts provided by the corresponding online service providers] of the corresponding reproducer/interactive transmitter within a period of no more than six months as prescribed by Presidential Decree after deliberation by the Commission.
(3) An online service provider receiving an order as prescribed under Paragraph (2) shall notify the corresponding reproducer/interactive transmitter of the fact that the corresponding account will be suspended according to Presidential Decree before seven days from the date of suspending the account.
(4) If a bulletin board established on an information and telecommunications network of online service providers (which refers to a bulletin board that provides commercial interests or convenience of use among those under Subparagraph 9, Paragraph (1), Article 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.; hereinafter the same shall apply.) which received three or more orders as prescribed under Subparagraph 2 of Paragraph (1) of this Article and is considered to seriously damage sound use of works, etc. in light of the format of the corresponding bulletin board, the amount or nature of copies posted on it, etc., the Minister of Culture, Sports and Tourism may order online service providers to suspend all or part of the bulletin board service within a period of no more than six months as prescribed by Presidential Decree after deliberation by the Commission.
(5) An online service provider receiving an order as prescribed under Paragraph (4) shall post the fact that service of the corresponding bulletin board will be suspended according to Presidential Decree on the homepage of the corresponding online service provider and the corresponding bulletin board before ten days from the date of suspending the service.
(6) Within five days from receiving an order under Paragraph (1), within ten days from receiving an order under Paragraph (2), and within 15 days from receiving an order under Paragraph (4), online service providers shall notify the Minister of Culture, Sports and Tourism of the consequences of carrying out the order as prescribed by Presidential Decree.  
(7) The Minister of Culture, Sports and Tourism shall give an opportunity to submit an opinion in advance to online service providers subject to the order under Paragraph (1), (2), or (4), reproducers/interactive transmitters with a direct relationship of interest with the order under Paragraph (2), and operators of bulletin boards under Paragraph (4). In this case, Paragraphs (4) to (6) of Article 22 and Article 27 of the Administrative Procedures Act shall apply mutatis mutandis to submission of opinions. 
(8) The Minister of Culture, Sports and Tourism may establish and operate an organization necessary for the affairs under Paragraphs (1), (2) and (4).
[This Article added on April 22, 2009]

Article 133-3 (Correction Recommendation, Etc.) (1) When investigating the information and telecommunications networks of online service providers and learning that illegal copies, etc. are interactively transmitted, the Commission may deliberate on such and recommend the online service providers to take correction measures under any of the following:
1. Issuing warnings against reproducers/interactive transmitters of illegal copies, etc.; 
2. Deletion or suspension of interactive transmission of illegal copies, etc.; and
3. Suspension of the accounts of reproducers/interactive transmitters which repeatedly interactively transmit illegal copies, etc.
(2) Within five days from receiving a recommendation under Paragraphs (1) and (2) of Article 1 and within ten days from receiving a recommendation under Paragraph (3) of Article 1, online service providers shall notify the Commission of the consequences of carrying out the recommendation.
(3) If online service providers fail to follow a recommendation under Paragraph (1), the Commission may request the Minister of Culture, Sports and Tourism to issue an order under Paragraphs (1) and (2) of Article 133-2.
(4) If the Minister of Culture, Sports and Tourism issues an order under Paragraphs (1) and (2) of Article 133-2 as prescribed under foregoing Paragraph (3), deliberation by the Commission is not required.
[This Article added on April 22, 2009]

2. Enforcement Decree of the Copyright Act (Presidential Decree No. 21676, August 6, 2009)

Article 72 (Procedures for and Methods of Deliberation of Orders, etc. for Deletion of Illegal Reproduction through Information and Communication Network)
If the Commission receives a request for deliberation from the Minister of Culture, Sports and Tourism (“the Minister”) pursuant to Article 133-2(1) of the Act, it shall deliberate within seven days from the date of request, and if it receives a request for deliberation from the Minister pursuant to paragraph (2) and (4) of the same Article, it shall deliberate within fourteen days from the date of request and submit the result thereof to the Minister without delay: Provided, That where it cannot deliberate within the period due to unavoidable reason, it may extend the period twice only [This Article wholly amended by Presidential Decree No. 21634, July 22, 2009]

Article 72-2 (Procedures for and Method of Orders for Warning or Deletion)
If the Minister intends to order an online service provider to give a warning on a reproducer and transmitter of illegal reproduction, etc., to delete illegal reproductions, etc., or to suspend transmission of them pursuant to Article 133-2(1) of the Act, he/she shall prepare a written order prescribed by Ordinance of the Ministry of Culture, Sports and Tourism and notify it in writing (including electronic documents: hereinafter the same shall apply) [This Article wholly amended by Presidential Decree No. 21634, July 22, 2009]

Article 72-3 (Procedure for and Methods of Orders for Suspension of Accounts)
(1) When the Commission deliberates pursuant to Article 133-2(2) of the Act, it shall take matters referred to in the following subparagraphs into consideration:
i. Recidivism of the relevant reproducer and transmitter;
ii. Quantities reproduced and transmitted by the relevant reproducer and transmitter;
iii. Kinds of illegal reproductions, etc. posted and their possibilities of substituting market;
iv. The influence of illegal reproductions, etc. on the distribution order of works, etc.
(2) If the Minister intends to order an online service provider to suspend accounts of the relevant reproducer and transmitter of illegal reproductions or such pursuant to Article 133-2(2) of the Act, he/she shall prepare a written order in which matters referred to in the following subparagraphs are mentioned and notify it in writing:
i. Accounts of the reproducer and transmitter;
ii. The fact that the reproducer and transmitter have received warnings pursuant to Article 133-2(1)(i) of the Act three times or more;
iii. The fact that the reproducer and transmitter have transmitted illegal reproductions, etc. after he/she received warnings pursuant to Article 133-2(1)(i) of the Act three time or more;
iv. The period of suspension.
(3) The period of suspension of accounts of the reproducer and transmitter pursuant to Article 133-2(ii) of the Act shall be as the following subparagraphs:
i. Less than one month in the case of the first suspension;
ii. Not less than one month and less than three months in the case of the second suspension;
iii. Not less than three months and less than six months in the case of the third or subsequent suspension.
(4) An online service provider who has received a written order referred to in paragraph (2) shall, without delay, notify the relevant reproducer and transmitter of matters referred to in the subparagraphs of paragraph (2) mentioned in writing pursuant to Article 133-2(4) of the Act. [This Article wholly amended by Presidential Decree No. 21634, July 22, 2009]

Article 72-4 (Procedure for and Methods of Orders for Suspension of Bulletin Board Service)
(1) When the Commission deliberates pursuant to Article 133-2(4) of the Act, it shall take matters referred to in the following subparagraphs into consideration:
i. Commercialism of the relevant bulletin board;
ii. Effect of opening of the relevant bulletin board;
iii. Functions and methods of utilization of the relevant bulletin board;
iv. Number of users of the relevant bulletin board;
v. Percentage of illegal reproduction, etc.;
vi. Kinds of illegal reproductions, etc. posted and their possibilities of substituting market;
vii. Degree of efforts of the relevant bulletin board to shut out illegal reproductions, etc.;
viii. Level of providing convenience to posting or utilization of illegal reproductions, etc.
(2) If the Minister intends to order an online service provider to suspend services of the relevant bulletin board pursuant to Article 133-2(4) of the Act, he/she shall prepare a written order in which matters referred to in the following subparagraphs are mentioned and notify it in writing:
i. Bulletin boards subject to suspension;
ii. The fact that he/she has received orders pursuant to Article 133-2(1)(ii) of the Act not less than three times;
iii. The contents of the offense;
iv. The period of suspension.
(3) The period of suspension of services of the relevant bulletin board pursuant to Article 133-2(4) of the Act shall be as the following subparagraphs:
i. Less than one month in the case of the first suspension;
ii. Not less than one month and less than three months in the case of the second suspension;
iii. Not less than three months and less than six months in the case of the third or subsequent suspension.
(4) When online service provider posts the fact of suspension of a bulletin board pursuant to Article 133-2(5) of the Act, he/she shall have users of the relevant bulletin board easily know the fact by mentioning matters referred to in the subparagraphs of paragraph (2). [This Article wholly amended by Presidential Decree No. 21634, July 22, 2009]

Article 72-5 (Procedure for and Methods of Report of Result of Measures)
An online service provider shall mention matters referred to in the following subparagraphs in a report of the result of measures prescribed by Ordinance of the Ministry of Culture, Sports and Tourism pursuant to Article 1332(6) of the Act and submit it to the Minister:
i. The contents of measures taken pursuant to an order;
ii. Information which can identify a reproducer and transmitter (in the case of an order pursuant to Article 133-2(4) of the Act, it shall be excluded)
iii. The date of execution of an order. [This Article wholly amended by Presidential Decree No. 21634, July 22, 2009]

Article 72-6 (Procedure for Recommendation of Correction)
(1) If the Commission intends to recommend correction pursuant to Article 133-3(1) of the Act, it shall recommend correction in writing with matters referred to in the following subparagraphs mentioned therein:
i. The contents of the offense;
ii. Matters recommended to correct;
iii. The deadline for correction;
iv. Measures to be taken when recommendation of correction is refused.
(2) An online service provider who has been notified of recommendation of correction pursuant to paragraph (1) shall notify the Commission of the result of measures taken in writing with matters referred to in the following subparagraphs mentioned therein:
i. The contents of measures taken pursuant to recommendation of correction;
ii. The date of execution of recommendation of correction;
iii. In the case of refusal of recommendation of correction, the reasons thereof.
(3) When the Commission deliberates Article 133-3(1)(iii) of the Act, it shall take matters referred o in Article 72-3(1) into consideration. [This Article wholly amended by Presidential Decree No. 21634, July 22, 2009]