In a recent case which involved the issue of whether posting a link to an overseas video sharing site – where cinematographic works such as movies or dramas were illegally posted and distributed without the copyright holder’s license – constituted a violation of the Copyright Act, the Supreme Court rendered an en banc decision confirming that posting such links did indeed constitute criminal aiding and abetting of copyright infringement (Supreme Court Decision 2017Do19025 rendered on September 9, 2021).

Cinematographic contents such as movies or dramas are increasingly consumed across borders on PCs and mobile devices instead of in theaters and on TVs.  Numerous “Re-View” sites and mobile apps have emerged that provide users with links to sites containing uploaded infringing content, and earn profits through banner advertisements.  However, the Supreme Court has until now held that the mere act of posting a link to infringing content does not facilitate copyright infringement, and thus does not constitute criminal aiding and abetting of infringement.

The Supreme Court overruled its prior precedent and remanded the case to the lower court, holding that the act of posting a link can indeed constitute aiding and abetting infringement of a copyright holder’s transmission rights.

The Supreme Court ruled that if the person linking to the infringing site was fully aware that the principal offender’s posting of content would infringe the copyright holder’s transmission rights, yet continues to post the link for profit and make the infringing site easily accessible to the public, such linking would clearly facilitate others’ access to the infringing site, and thus could constitute criminal aiding and abetting of copyright infringement.

The Supreme Court determined there was causation between the act of providing the link and facilitating the crime committed by the principal offender because the public would have been less likely to find the infringing content posted by the principal offender without such linking, meaning this linking facilitated easy access to the infringing content by the public and assisted the principal offender in realizing the infringing act, thereby expanding the infringement of the transmission rights of the copyright holder.

However, the Supreme Court acknowledged the concern that it would not be desirable to consider all routine posting of links in the normal course of using the Internet as aiding and abetting copyright infringement, as overly limiting freedom of speech or freedom of action on the Internet.  The Supreme Court emphasized that (i) a prosecutor seeking punishment must present strong evidence that the person providing the link was aware that the linked content was infringing; and (ii) if there is no close nexus between the hyperlinking and the principal offender’s infringement of the transmission right, such that the link has not actually contributed to expanding the infringement, then the posting of the link should not be considered aiding and abetting of infringement.

The Supreme Court has made a major change by overruling its previous precedent and holding that continuously offering links to infringing content for profit can constitute criminal aiding and abetting of copyright infringement.  As a result, if someone provides services such as “Re-View” sites and mobile applications that continuously provide hyperlinks to infringing content to earn profits through banner advertisements, that person can be found liable for aiding and abetting copyright infringement.  This Supreme Court decision should provide more tools in Korea to address and limit cross-border copyright infringing acts that occur on the Internet.