Introduction

On September 9, 2021 the Korean 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 permission of the copyright holder, is an act of infringement (Case No. 2017do19025).

The court previously denied infringement claims in relation to acts of linking to copyright material — what has changed?

Facts of the Case

The defendant had linked to videos (TV dramas, movies etc.) 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 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.

Relevant Law

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”.

Decision

First instance and lower court decisions

The earlier decisions found that links merely indicate the location or path to a copyright work, and as internet users can only access the relevant infringing content when they click the link and visit the web page which directly infringes copyright holders’ reproduction and transmission rights, the defendant’s actions did not facilitate the act of infringement itself. Further, as the defendant merely took advantage of the situation where transmission rights were already being infringed by another (unrelated) party, the defendant’s actions were not considered an act of aiding infringement.

Supreme Court decision

Per existing precedent, the Supreme Court decision stated that the act of providing a link to a copyright work does not per se correspond to “transmission” of the work, but rather a link is merely considered an instruction to request 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.

Take-aways

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 subject decision 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 of infringement cannot be established if the person providing a link does not clearly recognize 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 subject decision does still partially protect 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.