Soon after the signing of the Korea-US FTA ("KORUS") in June 2007, South Korea
experienced a dramatic increase of complaints of copyright crime from 2007.
Around one hundred thousands of persons were accused of
copyright infringement in a year, and juvenile’s victims occupied 24% in 2008.[1]
But the actual indictments
by the prosecutors were very small: from 2005 to 2013 on average only 7.38% of
the complaints were brought to the court. Most of them were for summary proceedings and public
trial occupied only 0.22%.[2] Notably in 2008, among the
complaints as many as 90,979, only 8 complaints led to the public trial
(0.00879%). Among the complaints that
were not indicted by the public prosecutors in 2008, around 60% cases were
withdrawn by the complainants.
These unimaginable figures, i.e., the
skyrocketed increase of criminal complaints on the one hand and the tiny
portion of actual trial on the other hand are for two reasons.
First, the threshold for entering the
criminal procedure is too low – almost nothing. The only threshold is knowingness. Any infringing act is subject to criminal penalty regardless of
the nature or seriousness of offense.
Second, the criminal enforcement has been
strategically abused by copyright holders and lawyers. The threat of criminal
sanction became a new business model since 2007 when KORUS officially signed.
Most of the complaints, 63% in 2008, were raised by law firms. They hired
special agents to regularly monitor the Internet and sent warning letters to
individuals who conducted technically copyright infringing activity,
threatening criminal actions. In exchange of stopping the criminal action, they
asked a cash settlement. The criminal enforcement procedure provides copyright
holders with a leverage using the threat of criminal action as the initiation
of criminal procedure is subject to a complaint by the right holder.
The
phenomenon so-called a “business of copyright settlement money” has been
widespread and become a serious social problem in Korea for nearly a decade. To fix
this problem, several bills to raise the threshold of the copyright criminality
has been introduced in the National Assembly. The latest effort makes the
statutory requirements for criminal sanction: a for-profit purpose; or harm or
injury to copyright holder of more than KRW one million.[3]
The copyright industries
and like-minded scholars and practitioners presented a united front to the bill
when it passed the competent committee in April 2014 and had a legal formality
examination ahead. Their opposition was based, among others, on possible
disputes with foreign countries, predicted complaints from foreign authors,
degradation of general public’s recognition on copyright protection, and breach
of KORUS, which requires criminalizing copyright violation for purpose of
private financial gain. Due to their strong resistance, the reform bill was
finally foundered in May 2016.
[1] The number of complained reduced to a
half since 2010 when the Ministry of Culture and the Prosecutors’ Office took
an interim measure not to prosecute those who were first involved in the
copyright infringement crime or minors.
[2] The summary proceedings, also called
summary indictment, refer to a court proceeding by which judge orders, without
attendance of the accused, a fine or penalty. See, Korean Minister of Justice, Criminal case procedures available
at http://fgn.kics.go.kr/en/jsp/cjp/criminalCaseProcedures09.jsp.
[3] The threshold of KRW one million was
modeled on the US laws of “during any 180-day period … a total retail value of
more than $1,000 (17 U.S.C. § 506(1)(1)(B)).
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