The "three Strikes" Policy in Korean Copyright Act 2009: Safe or Out?

• Citation: Vol. 6 No. 3
• Publication year: 2011

Washington Journal of Law, Technology and Arts Volume 6, Issue 3 Winter 2011

The "Three Strikes" Policy IN Korean Copyright Act 2009: Safe OR Out?

Sun-Young Moon and Daeup Kim(fn*)

Abstract

Korea has grown to be one of the Internet powers in a short period. Because of insufficient copyright protection, Korea recently revised the Korean Copyright Act to reinforce protection of copyright and promote sound distribution of copyrighted works. The new law allows the Minister of Culture, Sports and Tourism to issue orders and the Korea Copyright Commission to issue recommendations. Orders and recommendations are distinguished by the subject of the issuance and the legal force. Orders and recommendations enable online service providers to delete or stop transmission of illegal reproductions, give warning notices to infringers, or suspend the account of repetitive infringers. The "three strikes" policy is controversial and has raised several constitutional concerns. First, the suspension of the repeat infringer's account may be an unconstitutional violation of the infringer's freedom of speech. Second, an executive agency's decision to issue a correction order could be an unconstitutional violation of the separation of powers. The final concern is that the policy violates the principles of due process. This Article examines the "three strikes" policy, the constitutional concerns regarding the policy, and possible policy revisions for more effective copyright protection.

Table of Contents

Introduction .................................................................................. 172

I. Major Revisions of Korean Copyright Act to Prevent

Illegal Online Reproduction .................................................. 174

A.Order to Delete and Stop Transmission of the Pirated Material and Warning Notice ......................................... 175

B.Account Suspension Order ............................................... 175

C.Online Bulletin Board Service Suspension Order ............ 176

D. Correction Recommendations For Transmitters of Pirated Material .............................................................. 177

II. Controversy Over the Constitutionality of the "Three Strikes" Policy .......................................................... 178

A.Freedom of Speech ........................................................... 179

B.Separation of Powers Between Branches of Government ..................................................................... 180

C.The Principle of Due Process ............................................ 180

III. Suggestions for the Application of the "Three Strikes" Policy .................................................................................... 181

Conclusion ................................................................................... 182

Introduction

Since the advent of the Internet, modern society has drastically changed from print-based to digitally powered. Just as the printing press revolutionized its era, the Internet has exponentially become the most interactive, yet inexpensive, communication medium in history. On one hand, it is undeniable that the Internet has enlarged the extent of freedom of speech with unprecedented characteristics of interaction, diversity, and openness. On the other hand, the Internet facilitated the distribution of unauthorized copyright reproduction. Such copyright infringements have become easier and more frequent, further worsening the self-inflicting and self-perpetuating damages from such violations.

Korea is now one of the Internet powerhouses with a high rate of Internet utilization. 77.2 percent of the Korean population over age three currently use the Internet as of 2009.(fn1) Illegal reproduction and transmission of copyrighted works have become serious problems in Korea with the rise of new digital technologies such as peer-to-peer ("P2P") and Web-disc services. For prompt and efficient prevention of unlawful online reproductions and transmissions, revision of the Korean Copyright Act was inevitable. The revised bill allows the Minister of Culture, Sports and Tourism ("MCST") to issue correction orders to online service providers ("OSPs").(fn2) The law enables (1) deletion of illegal reproduction; (2) discontinuance of transmission; (3) warning notices to infringers; (4) suspension of an infringer's account; (5) suspension of an online bulletin board; and (6) granting of correction recommendation powers to the Korea Copyright Commission ("KCC") for OSP self-regulation.

Among the policies mentioned above, suspensions of accounts and online bulletin boards are carried out only if copyright infringements continue after three warnings of such violations. As the name accordingly implies, a so-called "three strikes" policy is carried out before any suspensions are enforced. Countries such as France, Taiwan, and New Zealand have also adopted "three strikes" policies, although the details of each policy may vary. Regardless of such adoptions, Korea's policy remains controversial. For example, critics note that the policy is biased towards protecting copyrights while violating users' fundamental right to freedom of speech.(fn3)

The validity and constitutionality of the policy are also controversial in Korea. This Article will provide an overview of the "three strikes" policy that was adopted to reinforce protection of copyright and to promote sound distribution of copyrighted works. Furthermore, this Article will explore the significance of the policy within the Korean Copyright Act and several arising issues, including constitutionality.

I. Major Revisions of Korean Copyright Act to Prevent Illegal Online Reproduction

The main point of the new Korean Copyright Act is to synthesize and integrate the Computer Protection Act within the Korean Copyright Act, and to introduce correction orders and recommendations on online illegal reproductions. The Korean Copyright Act has...