SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
Satire and Parody Published works can be quoted for certain pur - poses, such as criticism, education and research within a proper range, in compliance with fair practices. Satire or parody may fall within the scope of criticism, and would more likely qualify for the exception if: • it is for non-commercial purposes; • the original work is well known and thus it is easy to note that it is a satire or parody of the original work; • only a small portion of the original work is used in the satire or parody; or • there is less concern that the satire or parody may replace the original work. Contrary to a direct satire/parody that criticises the original itself, a vehicle satire/parody that uses the original to criticise other subjects may not qualify for the exception. Freedom of Speech/Right to Information The following are exceptions to copyright infringement in relation to freedom of speech and the right to information: • political speeches and public statements in courts, parliaments or local councils may be used in any manner; • works that are incidentally seen or heard in the course of news reporting may be repro - duced, distributed, performed or communi - cated to the public within a reasonable scope; • articles and editorials published in news - papers or other news media may be repro - duced, distributed or broadcast by other media organisations, unless such use is explicitly prohibited; and • published works may be cited for certain purposes – including criticism, education or
mark registration or before the plaintiff’s trade mark became famous. Some of these defences are codified in law, while others have been recognised through case law. If these defences are accepted, the plain - tiff’s claim will be entirely dismissed. However, if the last defence concerning the continued use is accepted, the trade mark owner can request the defendant to make indications necessary to prevent confusion or misunderstanding. 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) Fair Use There are certain restrictions on economic rights in that copyrighted works can be used without the copyright owner’s consent for educational purposes, news reports, the citation of published works, or incidental reproduction during filming. In addition, a copyrighted work can be used without the copyright owner’s consent as fair use if the use does not conflict with the normal exploitation of the work and does not unreason - ably prejudice the author’s legitimate interests under the CA. Factors for determining fair use include: • the purpose or character of the use; • the nature of the work; • the amount and substantiality of the portion used in relation to the work as a whole; and • the effect of the use upon the current and potential market for the work or the value of the work. The TMA does not make provisions addressing fair use.
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