바둑 유튜버, 핫뉴스(Hot News), 그리고 부정경쟁방지법 (파)목 - 서울고등법원 2024. 7. 25. 선고 2023나2039671 판결 -

This article reviewed Seoul High Court’s 2023Na2039671 decision (Subject Case), which addressed whether a YouTuber’s use of a record from a professional Go game hosted and organized by the Korea Baduk Association for making commentary videos constitutes an act of misappropriation of achievements under Article 2(1)(Pa) of the Unfair Competition Prevention Act (UCPA). The Subject Case raised the issue of applying the so-called ‘hot-news doctrine’, a U.S. doctrine of equity law which regards unathorized use of time-sensitive facts as unfair acts of misappropriation, as the plaintiff limited the claim’s scope in the appeal to prohibit use “before the game ends,” arguing that the economic value of the game progress information significantly changes before and after the game ends. The court rejected the plaintiff’s hot-news misappropriation claim, and determined that Go game records are historical facts of the past, similar to records of sports events, thus the plaintiff’s infringed economic interests belong to the public domain free to anyone. In conclusion, the court did not go further to examine the defendant’s act and denied the establishment of unfair competition under Item (Pa) of UCPA. Two distinctive features emerge in the ruling of the Subject Case: first, while acknowledging the hot-news doctrine, the court denied a violation of Item (Pa) by asserting that “the commercial value of the hot news vanishes immediately upon disclosure”; second, it rejected the establishment of unfair competition under Item (Pa) at the stage of determining the subject matter, without assessing the facts showing illegality of the act itself. These two points are critically reviewed in this article in terms of the desirable manner of determining Item (Pa). Regarding the first, ciritcized in this article are the court’s misunderstandings about the hot-news doctrine and the lack of careful consideration for the distinctiveness of Go game records compared to general sports match records. The second reflects the trend in court’s practices following the Supreme Court’s Golfzon ruling, which are problematic in diluting the original characteristics of Item (Pa) as legal norms regulating acts, not protecting rights. Nevertheless, the conclusion of the court denying a violation of Item (Pa) in the Subject Case regarding the use of professional Go game (record) in his/her commentary videos is valid. The hot news doctrine is affirmed quite restrictively in U.S. case law; its application requires higher level of cautiousness. Compared to daily news (INS case), scores of physical sports games (NBA case), or stock investment recommendations (Barclays Capital case), Go game records have a lower degree of time-sensitivity. Thus it may be difficult to justify avoiding overlap with copyright law by invoking the hot-news doctrine. Furthermore, the defendant’s actions in this case, i.e., making commentary of Go games are closer to the NBA case or the Barclays Capital case, where unfair exploitation of hot news was denied, than to the INS case, where it was affirmed. In addition, the defendant’s acts are highly likely to be supported by fair use, were it to be protected as copyrighted works. Such consideration might also support denial of a violation of Item (Pa) in the Subject Case.