THE EVOLVING LINKING LAW IN SOUTH KOREA: CHUING IT OVER.

• Author: Kim, Mikyung

CONTENTS Introduction 1 The Current Korean Hyperlink Copyright Regime 6 A. Copyright Holder Rights on the Internet: Interpretation of the Statutory Definitions in the Digital Age 6 1. Potential Defenses Under Article 30 8 B. Copyright Enforcement 9 1. Criminal Sanctions Against Copyright Infringement in Korea 9 2. Civil Remedies for Copyright Infringement 13 C. Potential Hyperlinking Liability under Korean Copyright Law 14 1. The Type of Link Technologies 14 2. The Lawfulness of the Linked-On Material 16 a. Linking to lawful material 17 b. Linking to an unlawful, copyright-infringing work 20 3. Main Actor and the Aider and Abettor 21 4. Co-Tortfeasor Treatment Under Art. 760(3) of the Korean Civil Act in Courts 22 a. The Sori-Bada Case 23 b. Ental Case 24 c. Remaining issues to be resolved 25 i. Interaction and harmonization with pre-existing jurisprudence of relevant Korean laws and U.S. copyright laws 25 ii. Legal consequence(s) of clicking an Internet hyperlink by viewer 26 5. OSP's Obligations and Limitations on Liability 28 a. Defining the scope of OSP obligations 29 b. OSP's liabilities and their limitations under safe harbor provisions. 31 c. Automatic indirect liability for linking and limitations of such liability under safe harbor provisions? 32 d. The theory and elements for the OSP's liabilities based on copyright infringement by users 33 Analysis of Chuing Decision 35 A. Infringement of Reproduction and Transmission Rights 35 B. Fluctuating Precedents and Post-Chuing Decision 40 1. Relatively Sparse Supreme Court Copyright Infringement Decisions in General 41 2. Precedents Involving Simple, and Deep or Direct Hyperlinks 42 3. Precedents Involving Inline or Framing Links 44 4. Post-Chuing Case Involving Embedded Links 47 5. Summary of Korean Courts' Interpretation of Hyperlinking Laws 49 C. Presumption or No Presumption of Accessory Liability for Hyperlinking Under Safe-Harbor Provisions 51 Predictable and Flexible Korean Hyperlinking Copyright Laws 52 A. Harmonization of Indirect Liabilities 53 B. Protection of Copyright and Freedom on the Internet 55 Conclusion 56 INTRODUCTION

Copyright law responds to the invention and proliferation of new technologies. Korean copyright law in particular seeks to protect authors and their works, even in the domain of online internet communications. At the same time, it is keenly aware of the need to limit too much protection for individuals as measured against the benefits of the work to society. Article 22(2) of the Korean Constitution states that "[t]he rights of authors, inventors, scientists, engineers and artists shall be protected" at law. (1)

Korea is considered by many as the nation with the fastest internet access speeds in the world and, with the highest internet usage penetration in Asia, (2) it boasts a plethora of connectivity options to access, contribute, and receive cultural media in cyberspace. (3) Ideas surrounding the use of internet in society, however, have only recently begun to find favor with courts as the subject of legal jurisprudence. (4) A leader in terms of the integration of internet usage and online media into everyday life and society, Korea continues to grapple with copyright law in cyberspace. (5) This derives partly from its often inconsistent jurisprudence on intellectual property issues. (6) Although domestic technology inventions enjoy a forceful patent protection scheme, copyright law has remained more varied in its interpretation and vigor to date. (7) This article seeks to remedy a patchwork quilt of legal precedents, both persuasive and non-binding, as well as Korean statutory norms.

The potential liability of online service providers (OSP) based on copyright infringement committed by users of their linking services has been one of the most complicated and contentious copyright issues in the U.S. and Europe, and perhaps as well as in South Korea. (8) With an eye to free trade agreements with the United States and Europe, Western notions of intellectual property (IP) laws including copyright law and its role in society have begun to "creep" into Korean jurisprudence. (9) The validity of these free trade agreement (FTA) IP concepts, however, should not be assumed in blind faith; rather, a careful assessment of these IP provisions, with reference to Korean legal traditions, cautions against wholesale importation, in favor of a more selective, measured approach. Rights holders, as well as third parties and end users, are harmed by the failure of domestic copyright law to adequately settle an area of the law that comparative jurisdictions have found alternative but more conclusive means of resolving. (10)

The South Korean Supreme Court decision on "linking" in the "Chuing" case from 2015 was most hotly debated. (11) Chuing.net ("Chuing") is a website for exchanging information about popular Japanese cartoons, comics, and animation. Like many online bulletin boards or forums, any user (12) who accessed Chuing was able to view the contents and postings therein, but only those users who registered for an account with the Chuing website were permitted to add comments and post new topics. The online members (13) of Chuing posted information about these animated drawings, frequently with character analyses, reviews of cartoons, and 44 hyperlinks to overseas blogs on which particular cartoons or their translated versions had been uploaded, without permission from copyright or other rights holders in the cartoons. Chuing had also exercised some online community management functions. A criminal action was brought against Park, who was the domain owner, website manager, and online administrator, for alleged copyright infringement by the provision of direct links to overseas blogs where users could copy and transmit those cartoons or their translated versions. (14)

The Court held that Park did not infringe the copyright, either as a principal or as an accessory under Art. 136(1)(1) of the current Korean Copyright Act. (15) The Court reasoned that the mere provision of links, which had not been found to be reproducing or transmitting the linked-to work under the Korean Copyright Act in precedent rulings, (16) could not be considered a principal offense for copyright infringement because the act of making a deep/direct link to the copyrighted work does not make a copy or transmission. (17) In other words, Park's provision of the hyperlink by neglecting the link posts was simply informing a user about the location of (translated) versions of Japanese animations on the internet.

In addition to linking, these animated media files were frequently unlawfully uploaded to the Chuing site by Chuing members so that other internet users could view or download those files. (18) Whereas Park exercised oversight duties over Chuing, additional management functions were delegated to members of the website who had assumed supervisory roles of an informal nature. (19) Given the expressive and opinionated nature of online bulletin board websites, owners such as Park commonly utilize select members as moderators to police and monitor the pages for especially offensive or illegal content. (20) Park had allowed the management team of these such moderating members to upload or link to cartoons and other relevant digital materials originally posted on blogs the moderating members operated themselves and hosted abroad. (21) Chuing served as the de facto central hub for these moderating members to share their individually hosted web pages as spokes amongst themselves and with others. (22) This meant that the website fostered both the discussion and dissemination of the works of interest to the Chuing members.

The Court also reasoned that Chuing could have been found to have made the reproduction or transmission of the works easier, by providing the links, and thereby to have aided and abetted the commission of copyright infringement. (23) Chuing contended that with no evidence of the commission of an underlying crime by a principal, punishing an aider and abettor would indefinitely expand the scope of prosecution, in violation of the principle of legality. (24) In response, the prosecution argued that an aider and abettor to the commission of a crime need not be aware of who exactly the principal is under precedents. (25) For reasons specific to Korean jurisprudence and explored below, the criminal nature of the action was grounded in the current copyright regime.

Notably, the Court did not analyze a potential infringement of distribution rights, because the distribution right may only involve tangible works--not any work transmitted electronically under the Korean Copyright Act. (26)

The Chuing decision was not warmly received. First, it was argued that the decision conflicted with precedent. (27) For instance, in 2003 the Korean Supreme Court found that the defendants who made a simple link to the homepage of a website where plaintiffs created an online bulletin board of lewd pictures were criminally liable as principal for openly displaying such pictures. (28)

Second, it was argued that the Court should have analyzed each and every exclusive right protected by copyright individually. (29) Here, the reproduction right and public transmission right were relevant, and thus the Court should have determined whether Park, by his operation of Chuing, aided and abetted the unauthorized reproduction and public transmission of the linked-on work. (30) One interesting argument that was made was that an infringement of the reproduction right and an infringement of transmission right are different offenses under the criminal law, i.e., the former would be an instant or completely committed offense, while the latter, a continuing or incompletely committed one. (31) As these were comprised of different elements under the statutory view, violation of one would not necessarily preclude an analysis of culpability of the other.

Additionally, it was argued that...