Korean Copyright Act Article 30: Does “Private Use” Under the Copyright Act Implicate International Obligations?

Article 30 of the Copyright Act allows for “private” reproduction of a work for use in a “limited circle.” This effectively legalizes the very common practice of “casual copying,” or not paying for copies of works owned by friends and acquaintances. But is this provision legal under international law?TRIPS states that all limitations to rights must be “certain special cases” that do not “conflict with a normal exploitation of” nor “unreasonably prejudice” the rights of the rightholder. The World Trade Organization Dispute Settlement Body (“DSB”) has analyzed the TRIPS three-step test only once, in the context of a statutory exemption allowing certain businesses to play music without licenses. In the course of that arbitration, the DSB focused on the quantity of users exempted as well as evidence concerning the total losses (including potential losses) to rightholders. Currently there is only minimal evidence concerning the effect of casual copying on revenue, and that data suggests that casual copying does no harm to rightholders. This conclusion, however, is very tentative and could easily change based on new data. Therefore, although this paper concludes that article 30 would not currently run afoul of the TRIPS test, two amendments are suggested to ensure that “private” reproduction remains in compliance. Both approaches can already be seen in other aspects of Korean copyright law. First, article 30 could be amended to grant the President the power to decree uses outside the scope of “private” use if an international body finds a certain use would violate international obligations. In the alternative, TRIPS-like language (borrowed from the three-part test) could be added to article 30. As the former is more predictable yet still allows for a fair degree of responsiveness, a “Presidential Decree” amendment should be integrated into article 30.