Copyright Act | Analysis of a Supreme Court Judgment Holding That a Fee Must Be Paid to Use Literary and Artistic Works in the College Scholastic Ability Test

The plaintiff who filed the damages lawsuit relating to the Copyright Act was the Korea Literature and Arts Copyright Association.

Under the Copyright Act, this association had been entrusted by copyright holders with the rights of reproduction and transmission of their works, and it managed those rights, collected copyright royalties, and distributed them to the entrustors.

The party against whom they filed the lawsuit was the Korea Institute for Curriculum and Evaluation.

The Institute is responsible for taking part in the research and development of curricula for schools at each level and for administering the scholastic aptitude tests conducted nationwide.

This lawsuit began when the Institute used works in whole or in part for the high school entrance examination and the College Scholastic Ability Test and made them freely downloadable on the internet.

The association argued that the Institute's posting infringed the transmission rights of the copyright holders whose works it managed.

The association added that, even assuming the transmission rights were not infringed, the Institute had failed to indicate the source for 39 of the 153 works, and that it was therefore obligated to pay damages in connection with that failure.

In the damages lawsuit concerning the Copyright Act, the court of first instance ruled in favor of the Institute.

The court found that the Institute, as a public institution, had posted the works for a public-interest purpose rather than a private one.

It also determined that, in order to guarantee equal learning opportunities for examinees and to manage the examinations transparently, the examination questions had to be disclosed.

The court pointed out that the works in this case were all works that had been made public and that, given their high academic and artistic value, they are frequently used for examination or educational purposes, and that, considering this significance, the citation of such works may be permitted broadly.

The appellate court's determination, however, was different.

The appellate court took the view that disclosing examination questions after the examination has ended, without the consent of the copyright holders, must be permitted only within a limited scope.

It reasoned that, if the free use of works continues to be allowed in a situation where there is no longer any need to maintain the confidentiality of the examination questions, this may even produce the effect of substituting for the demand for appreciation of, and other uses of, the works.

It explained that transmitting the works without permission to an unspecified number of people, without restriction, for several years after the examination's question preparation and the provision of scores had all been completed, violates the Copyright Act.

The Institute for Curriculum and Evaluation then filed a petition of final appeal.

The Supreme Court, which heard the damages lawsuit relating to the Copyright Act, reached the same determination as the appellate court.

The Court stated that, because the Institute placed no restriction on the period of posting or on the persons who could download the works, it was difficult to find that the works had been used only within the scope strictly necessary.

It also added that there was a significant risk that the relevant market demand for the works in this case would be substituted, or that their market value would be impaired.

The Court further stated that, since the Institute is a public institution operated with government contributions, it is entirely feasible for it, where necessary in the public interest, to pay an approved fee for the works and post them on its website or elsewhere.

We have analyzed the Supreme Court judgment holding that, even where a work is used for a public-interest purpose, posting it to the public without placing any limits on the period of use or on the persons eligible to use it is unlawful.

As the number of people creating content has recently surged, there are many cases in which someone becomes embroiled in controversy by using a work created by another, such as music or video, without authorization and without much thought.

As the importance of copyright grows by the day, sufficient review of the relevant law appears to be necessary when citing the work of another.

At Daeryun Law Firm LLP, a legal team with extensive experience in copyright litigation assists clients.

If you have any inquiries regarding the Copyright Act, you are welcome to visit Daeryun Law Firm LLP and request a consultation at any time.