Korea Close On “Graduated Response” Bill Aimed At Copyright Infringers

By Catherine Saez
Korean legislation might be getting tougher on copyright infringers as a new bill is expected to be considered by the National Assembly as soon as this month, according to a Korean official. Following France, the United Kingdom and other countries, Korea’s new bill would include four changes among which is a “graduated response” provision that would require internet service providers to carry a significant part of the load of enforcement, according to an unofficial translation of the bill.

The bill would include four major amendments to the current legislation. The Computer Protection Act would be merged into the Copyright Act; special provisions would be enacted for computer programmes; a Korean Copyright Committee would be established by merging the Copyright Committee and the Computer Programme Protection Committee into the Korean Copyright Committee; and the “graduated response” provision would be introduced.

The graduated response mechanism, first introduced by France, would suspend internet access of infringers after all internet users’ activities are systematically monitored by internet service providers (ISPs) reporting any infringements. France’s efforts stirred an intense debate in Europe to the point where the European Parliament adopted a report on the matter in April [IPW, Internet and Communications Technology, 10 April 2008).

Furthermore, the Parliament voted on 24 September in favour of an amendment (number 138) to the so-called European Telecoms package, which updated the rules governing the internet and telecommunications sector, stating that no restriction on the rights and freedom of end users can be taken without decision of the judicial authority.

France still means to pass its graduated response law (in French), which was adopted by the French Senate on 30 October and is now waiting to go before the National Assembly for the final vote, possibly in early 2009.

According to the Korea official, in Korea there are a number of companies that provide services for the uploading and downloading of movies and music files. Under the current law, the right holder may request an injunction against downloading of illegal files. However, the official said, the files that are uploaded far exceed those that are deleted upon court order of injunction mainly because an online service provider is only required to delete the specific file designated by the court order.

Also under the current Korean law, an online service provider can be fined by the relevant government agency up to approximately $22,500 (KRW30,000,000 South Korea Won) if the service provider does not take necessary measures for filtering illegal transfer or copyrighted material. However, profits from the transfer of illegal files are much bigger than the administrative fine, making the current fine little deterrent against piracy. The Ministry of Culture, Sports and Tourism felt necessary to introduce the so-called “graduated response” provision in the Copyright Act, he said.

Korean-based IPLeft, which examines existing intellectual property regimes and aims at providing alternative systems to foster equitable access to knowledge and culture, is trying to stop the legislation. The group provided an unofficial English translation of the “graduated response” provision in the copyright law amendment bill (Article 132-2).

According to this unofficial translation, the “graduated response” would enable the culture, sports and tourism ministry to order, after deliberation by the Korean Copyright Commission, online providers (providing services like email, blog, personal home pages, peer-to-peer) to warn reproducers or transmitters of illegal reproductions. They also could order them to: delete or stop transmission of illegal reproductions; suspend or terminate the user account when the owner of such account has been warned and persists in transmitting illegal reproduction; and close the bulletin board that has received orders to delete or stop transmission of illegal reproductions more than three times. The information and telecommunication service providers (broadband internet connection providers) would be asked to block connections of online service providers who have been subjected to a fine more than twice because of failure to implement filtering.

The bill should be submitted to the National Assembly in November, according to a source at the Ministry of Culture. “The National Assembly is de facto the last step for legislation although the president has the power to veto,” said the first Korean official. However, in the case of a bill submitted by an administrative body, as such is the case here, the president rarely exercises veto power, he said.

Catherine Saez may be reached at csaez@ip-watch.ch.