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Key Changes
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1)
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Linking to pirated content is deemed an infringing act (Article 124(1)4 and 5)
In an en banc decision in 2021, the Supreme Court held that commercially and continuously providing links could be punished for aiding and abetting copyright infringement (No. 2017Do19025). Not only will linking to pirated content constitute an independent infringing act, persons who operate websites, social media notice boards and chat rooms providing such links, or who post such links for commercial purposes will be treated as infringers and directly punished. Such “deemed infringing acts” include:
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Knowingly conducting commercial activities such as operating websites, or social media notice boards and chat rooms to provide connection to pirated contents;
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Knowingly posting information to connect to pirated contents on the above websites, or social media notice boards and chat rooms
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2)
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Ministry of Culture, Sports and Tourism and the Korea Copyright Protection Agency now have greater authority to block access to pirated content (introducing emergency blocking system)
The Amendment further clarifies that the Ministry of Culture, Sports and Tourism (“MCST”) and the Korea Copyright Protection Agency (“KCOPA”) have the authority to block access to pirated content. The Amendment also simplifies the procedures for preventing the distribution of pirated content, including:
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Ordering/advising online service providers to block access (Article 133-2(1)3 and Article 133-3(1)4)
If control cannot be achieved through existing measures (warnings, deletions, etc.), the MCST and KCOPA may order and advise, respectively, online service providers to block access to pirated content following a review by the Copyright Protection Deliberation Committee (“Committee”).
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Issuance of emergency blocking orders to online service providers (Article 133-4)
The MCST may also order an online service provider to block access to pirated content even before the Committee’s review (“emergency block”). However, such emergency block may only be implemented upon satisfaction of the following requirements:
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Established fact of transmitting pirated content through information and communications networks
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Clear infringement of rights
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Urgent necessity to prevent irrecoverable damages
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Acknowledgement that no measures other than access blocking are available
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An online service provider who fails to implement the order will be subject to a fine not exceeding KRW 10 million.
Upon ordering an emergency block, the Minister of the MCST must immediately notify the Committee of the order, which then must review and decide within five days whether to maintain
it. The alleged publisher or manager of the pirated content subject to the emergency block may file an objection within five days of the blocking order, in which case, the MCST must immediately remove the emergency block.
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3)
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Civil and criminal sanctions are enhanced
In addition, the Amendment enhances civil and criminal sanctions for infringement.
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Introduction of punitive damages (Article 125(4) and (5))
The Amendment introduces a punitive damages system so that courts may determine a compensation amount of up to five times the acknowledged amount of damages.
In determining the punitive damages amount, the following factors are considered:
(i) the degree of awareness of intent or the risk of damage;
(ii) the size of damages suffered by the copyright holder;
(iii) economic profit gained by the infringement due to the infringing act;
(iv) the type and severity of criminal punishment imposed on the infringer due to the infringing act;
(v) the period and frequency of the infringing act;
(vi) the infringer’s financial standing; and
(vii) measures taken by the infringer after committing the infringing act.
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Increased statutory penalties (Article 136(1))
The statutory penalties for infringement of property rights (including property right of copyright) increased from “imprisonment not exceeding five years or a fine not exceeding KRW 50 million” to “imprisonment not exceeding seven years or a fine not exceeding KRW 100 million.”
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