Brave New World: Issues and Implications of the New Fair Use Clause in the Korean Copyright Act
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The New Fair Use Clause in the Korean Copyright Act
BRAVE NEW WORLD: ISSUES AND IMPLICATIONS OF THE
NEW FAIR USE CLAUSE IN THE KOREAN COPYRIGHT ACT
by JEE YOUNG HAHN* AND BYOUNG Kvu LEEt
I. INTRODUCTION
On November 22, 2011, the National Assembly of the Republic of
Korea (Korea) passed a bill for the revision of the Korean Copyright
Act along with the ratification of the Korea-U.S. Free Trade Agreement
(KORUS).1 This revision, which entered into force on March 15, 2012,
mainly aimed to implement the items of KORUS.2
Most importantly, it marked an historic milestone that will lead to a
new chapter in the Korean copyright system. It contains a new fair use
clause in Article 35ter, which is almost equivalent to § 107 of the U.S. Cop-
yright Act of 1976.3 Even though the Korean Copyright Act provides that
one of its purposes is to promote fair use of authors' works,4 prior to the
* First Author, Associate Professor, School of Law, Ajou University. E-mail:
jyhahn@ajou.ac.kr.
f Corresponding Author, Associate Professor, College of Law, Myongji Univer-
sity. E-mail: bkl422@mju.ac.kr. The authors hereby express our deepest gratitude
to Mr. Robert M. Kunstadt and Prof. Christopher Salatiello for their valuable com-
ments and advice on this article.
1 Signed June 30, 2007, https://ustr.gov/trade-agreements/free-trade-agreements/
korus-fta. KORUS is one of the most powerful trade agreements the U.S. has
concluded in nearly two decades, containing strong provisions to eliminate tariffs
and non-tariff barriers. It is also one of the most economically significant trade
agreements in Korea's history. According to an announcement from the U.S. Em-
bassy in Korea, tariff cuts on goods in KORUS will support an estimated 70,000
American jobs and increase U.S. exports to Korea by $10-11 billion. Furthermore,
when the agreement enters into force, Korean tariffs will be eliminated on nearly
80% of U.S manufactured exports to Korea and on approximately two-thirds of
U.S. agricultural exports to Korea. See Summary of President Barack Obama's
Call with South Korean President Lee, UNITED STATE EMBASSY (Mar. 14, 2012),
http://seoul.usembassy.gov/p-rok-fta 031612_1.html.
2 Jeojakkwonbeob [Copyright Act], Act. No. 11110, Dec. 2, 2011 [hereinafter
Korean Copyright Act].
3 17 U.S.C. § 107 (2012). The Visual Artists Rights Act of 1990, Pub. L. No. 101-
650, 104 Stat. 5089, 5132, amended § 107 by adding the reference to section 106A.
In 1992, § 107 was also amended to add the last sentence. See An Act to amend
Title 17, United States Code, relating to fair use of copyrighted works, Pub. L. No.
102-492, 106 Stat. 3145.
4 Korean Copyright Act art. 1. The purpose of this Act is to protect the rights of
authors and neighboring rights, and to promote the fair use of works in order to
contribute to the improvement and development of the culture industry and re-
lated industries.
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Brave New World: Issues and Implications of the New Fair Use Clause in the Korean Copyright Act
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