There is no so-called illegal download! (Jinbonet)
by Oh Byoungil, Staff coordinator of Korean Progressive Network 'Jinbonet' (translated by Shinjoung Yeo)
Popular celebrities (Ahn Seong-gi, Park Joong-hoon, etc.) in South Korea have launched a public campaign called “good downloader.” The message of this “public campaign” is that films and animations where these actors/actresses and singers are starring are in danger due to illegal downloading.
The dominant perception among many Koreans is that any downloading activities without the copyright owner’s permission is considered “illegal.” In fact though the Copyright Act of South Korea recognizes that reproduction of copyrighted works for private use is regarded as “fair use” under Article 30 of the Copyright of Act. Article 30 the Copyright Act states:
“A user may reproduce by himself a work already made public for the purpose of his personal, family, or other similar uses within a limited circle, not for profit purposes: provided that this shall not apply to reproduction by a photocopier set up for public use.”
Examples of reproduction for private use could include: recording TV drama to watch later, copying part of a textbook and converting a CD to MP3 for personal use. Downloading a movie from the Internet for private viewing is also protected under Article 30.
The idea behind the Reproduction for Private Use provision is that non-commercial activities within a limited circle hardly affect the profits of copyright owners; furthermore, getting permission from copyright owners for each private use could be more costly. In addition, it is unrealistic to regulate private activities that could easily lead to invasion of privacy. Up until now, most copyright regulation had been exercised not via the downloading of content but rather on the uploading side of the equation; in fact copyright violation cases have been against people who were uploading materials rather than downloading. In addition, the South Korean Government’s copyright enforcement has primarily been against Internet Service Providers -- including portal sites, webhard services, P2P services, etc. Thus, under article 30, there is no so-called “illegal downloading” in Korea -- all reproduction for private use is perfectly legal.
In 2008 there was a controversial ruling in regards to reproduction for private use. In August 2008, the Seoul Central District Court ruled that even if a user downloaded a work for personal use, it could not be considered fair use under article 30 if the work was an illegal file. This is a first round ruling which has received much criticism from copyright experts because there is no clear statement in the Copyright Act on which the ruling can be grounded and there is no basis to deny the intent of reproduction for private use provision.
As legal disputes have arisen, the South Korean government has attempted to legislate “illegal download” as an exception under article 30. In February of 2010, the Ministry of Culture, Sports and Tourism announced a legislative proposal to amend the current copyright law. The proposed amendment includes a clause whereby if a person makes a reproduction of an illegally reproduced work with knowledge of the illegality of the reproduced work, s/he shall not be protected by the reason of Private Use.
This proposed amendment has been criticized by many civil society organizations and copyright experts. In March of 2010, IP Left and Korean Progressive Network Jinbonet had a joint press release and expressed concern that, “not only does this amendment not have an actual effect but it also would lead to the monitoring of users’ activities” and demanded that the amendment be abolished. As mentioned before, considering the intent of reproduction for private use provision, even if this amendment is adopted, it will be extremely difficult to enforce the law by finding out users’ illegal downloading activities.
These civil society organizations additionally argue that in order to enforce this amendment effectively, there is a possibility that it will lead to additional laws that justify the invasion of privacy and the collection of private information. The purpose of copyright law is to promote culture and arts by providing temporary exclusive right to the copyright owner. While this is an artificial right, privacy is a basic right that is guaranteed by the Korean Constitution and the United Nations’ Universal Declaration of Human Rights.
The invasion of citizens’ privacy should not be rationalized in the name of the protection of copyright; there is a danger that the amendment could justify the exercise of government power over citizens’ privacy. Neither the creation of an ineffective law nor the monitoring of internet users for effective enforcement of the law is desirable.
Another criticism on the proposed amendment is the ambiguity of the clause. The question is how law enforcement will judge and prove whether a user has knowledge of the illegality of the reproduced work. This ambiguity could discourage the use of works and bring a chilling effect where users may decide not to exercise their right to use the work for private purposes due to fear of possible copyright infringement. In reality, lots of works on the Internet are wrongly marked or unclear whether they are legally or illegally attained. It is not easy to verify the legality of a work. If the South Korean government puts this law into effect then every time one receives an email from a friend that includes a work s/he might need to verify the legality of the work.
Like many other countries in the World, South Korea has been strengthening their copyright law. The IP section of the Korea and U.S. Free Trade Agreement (KORUS FTA) -- waiting to be approved by the South Korea National Assembly -- requires a bolstering of current Korean IP law. Yet, this goes against the will of South Korean citizens and contradicts the purpose of copyright which intends to foster culture, art and science. Citizens’ right to access to information and freedom of expression on the Internet is being increasingly threatened.