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TPP and Withdrawn Proposals of the US in the negotiation of the US-Korea FTA

The followings were demanded by the U.S. negotiators but eventually withdrawn during the negotiation of FTA with South Korea.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]