First-instance and lower court
On 9 September 2021, the Supreme Court ruled on a copyright case, acknowledging that the defendant's act of linking to an uploaded copyright video work from their site, without the permission of the copyright holder, was an act of infringement.(1)
The Court previously denied infringement claims in relation to acts of linking to copyright material. This article looks at what has changed.
The defendant linked to videos (eg, TV dramas and movies) uploaded by unnamed persons to a video sharing site with overseas servers, knowing that when users clicked on the links, copyright video works would be transmitted in infringement of the copyright owners' right of public transmission.
The defendant posted links to the copyright video works on the message board of a site operated by the defendant and from which they obtained advertising revenue. When users of the site clicked the links, they were moved to a loading screen, following which the videos were transmitted. The prosecution brought this suit against the defendant for facilitating the infringement of the transmission rights of unnamed persons for the purpose of obtaining profit.
Article 18 of the Copyright Act prescribes that an author "shall have the right to transmit his/her work in public". Here, "public transmission" means "transmitting works . . . by making such available to the public by wire or wireless means so that the public may receive them or have access to them", as defined under article 2-7 of the same Act.
Article 32 of the Criminal Act prescribes that "[t]hose who aid and abet the commission of a crime by another person shall be punished as accessories".
First-instance and lower court
The earlier decisions found that links merely indicate the location or path to a copyright work. As internet users could only access the relevant infringing content when they clicked the links and visited the web pages which directly infringed the copyright holders' reproduction and transmission rights, the defendant's actions did not facilitate the act of infringement itself. Further, as the defendant had merely taken advantage of a situation in which the transmission rights were already being infringed by another (unrelated) party, the defendant's actions were not considered an act of aiding infringement.
In line with existing precedent, the Supreme Court stated that the act of providing a link to a copyright work does not per se correspond to "transmission" of the work; rather, a link is merely considered an instruction to request the transmission of a work or to prepare such a request, or is simply a pathway linking to a work.
However, the Supreme Court held that the defendant was fully aware of the criminal infringing activity, but nonetheless continued to post links to infringing works on their site and allow members of the public to easily access the infringing content in the interest of obtaining profit. As this facilitated the crime by unnamed persons of providing infringing content for public use, it was judged that the crime of aiding in the infringement of transmission rights could be established.
Contrary to earlier Supreme Court precedent where the act of linking to a webpage containing infringing material did not constitute aiding in the infringement of transmission rights, the decision in this case changes this position and clarifies that providing links can itself constitute an act of aiding the infringement of transmission rights.
However, the Supreme Court held that aiding infringement cannot be established if the person providing a link does not clearly recognise that it leads to infringing content. In cases where there are not continuous efforts to post links to infringing content in the interest of profit – where there may not be an obvious relationship between the act of providing links and the criminal infringement activity – or in cases where there are considered to be overall reasonable grounds for posting such links, an act of aiding infringement cannot be established.
The legal situation under earlier precedents provided insufficient protection for copyright holders as infringers could get away with posting links to infringing content. While the decision in this case still partially protects the freedom to post links, a threshold has been set for establishing the crime of aiding copyright infringement, thereby strengthening the protection of copyright holders' rights.
For further information on this topic please contact Jae-Sang Lim at NAM & NAM by telephone (+82 2 753 5477) or email ([email protected]). The NAM & NAM website can be accessed at www.nampat.co.kr.