Korea Gets Its Own Dancing Baby Copyright Fight; Says Free Expression Trumps Copyright Concern

from the go-free-expression dept

If you follow copyright issues online, by now you've undoubtedly heard of the famous Lenz case, involving Universal Music issuing a takedown to YouTube on a 29-second home video a mother took of her toddler son dancing to a Prince song. While Universal didn't protest the counternotice, the EFF sued, pointing out that it should have taken fair use into account.

Wonil Chung, an intellectual property lawyer in South Korea alerted us to a blog post he wrote about a case that is almost identical to the Lenz case in the US. It involved a father filming his toddler daughter dancing and singing to a Korean pop star. Again, a takedown notice was issued, and the guy sued in response. Of course, it's worth noting that South Korean copyright law can be much stricter than US copyright law (in part due to lobbying pressure from -- you guessed it -- US entertainment industry lobbyists as part of a "free trade agreement" the US signed with South Korea). It's also worth noting that South Korea's concept of fair use is extremely narrow.

However, thankfully, the court sided with the father, pointing out that the video itself was not a substitute for the song, it had a non-commercial purpose, and only 15-seconds of the song were used. Perhaps most importantly, it noted:
"If this kind of UCC [User Created Content] is barred from uploading online, it results in a unnecessarily excessive restraint on the free expression."
Even beyond that, unlike the court in the Lenz case, the Korean court ordered the copyright holder to pay the father for "mental damages suffered from the takedown." This is nice to see, and Chung's summary of the ruling pretty much wraps it up:
Another interesting part of this ruling is that the court clearly found that the free expression under the constitution of South Korea must be considered fully and fairly in determining whether there exists a copyright infringement or not. Although the Korean Copyright Act has a fair-use-like clause, the clause is stated relatively narrowly so there has been a certain criticism that Korean court is not active in holding up a fair use defense. But this ruling held that the constitutional right of free expression has the equal value as a copyright stated in the Copyright Act which is a subordinate law to the constitution. That's why I welcome this ruling and expect to see the balance between the free expression and copyright with more fair use defences accepted in the Korean court in the future.
His full post has more details and quotes from the ruling.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    mike allen (profile), Oct 13th, 2010 @ 6:08am

    we could all move oh wait some of their rules are worse.

     

    reply to this | link to this | view in thread ]

  2.  
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    Dark Helmet (profile), Oct 13th, 2010 @ 6:13am

    Huh?

    "Even beyond that, unlike the court in the Lenz case, the Korean court ordered the copyright holder to pay the father for "mental damages suffered from the takedown." This is nice to see..."

    Ugh, really? Why is it nice to see courts assigning monetary penalties to the "mental damages" caused by someone taking down a video? I'm all for the copyright holder paying for the guy's legal bills and time associated with a frivelous suit, but mental damage?

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Dark Helmet (profile), Oct 13th, 2010 @ 6:13am

    Huh?

    "Even beyond that, unlike the court in the Lenz case, the Korean court ordered the copyright holder to pay the father for "mental damages suffered from the takedown." This is nice to see..."

    Ugh, really? Why is it nice to see courts assigning monetary penalties to the "mental damages" caused by someone taking down a video? I'm all for the copyright holder paying for the guy's legal bills and time associated with a frivelous suit, but mental damage?

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Oct 13th, 2010 @ 6:29am

    Re: Huh?

    Agreed

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Oct 13th, 2010 @ 6:29am

    Re: Huh?

    I agree again, can I subscribe to your newsletter?

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Oct 13th, 2010 @ 7:39am

    Re: Huh?

    I'm all for the copyright holder paying for the guy's legal bills and time associated with a frivelous suit, but mental damage?

    I remember years ago, when at University, a law student telling me that , yes you could get damages for "shock and distress".

    I told him that if he continued to wear his current pair of trousers (a particularly loud check pattern) - he was risking a lawsuit...

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Keybored, Oct 13th, 2010 @ 7:51am

    Re: Re: Huh?

    Indeed

     

    reply to this | link to this | view in thread ]

  8.  
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    Dark Helmet (profile), Oct 13th, 2010 @ 7:57am

    Re: Re: Huh?

    That's kind of the point, though. Monetary damages awarded for these more ethereal, subjective things, like "mental damage" from having your video taken down, seem problematic and ripe for abuse....

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Oct 13th, 2010 @ 8:03am

    Re: Huh?

    I dunno, I can kind of see this as justified. Not that I'm one to go along with mental distress type damages all the time, but this man had to waste time and money going to court over 15 seconds of personal family video. It could have been avoided if the takedown hadn't happened, had been considered thoughtfully first as recommended by the judge.

    I know my time and money - and mental health, such as it is - are valuable to me. I'd want a pound of flesh from someone who wasted it so pointlessly, who put me through unnecessary travail, if only that they or someone like them might think twice in the future about being so dickish.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Oct 13th, 2010 @ 8:06am

    Re: Huh?

    In Asia that could impact your social life, people do enforce standards and they can shun you for those kind of things, you don't get help, you don't get heard, you don't get invited for community reunions and so on.

    You can loose your job for something like that.

     

    reply to this | link to this | view in thread ]


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