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Infringement of music copyright

What is “infringement, plagiarism, or parody of music copyright?”

- “Copyright infringement” refers to using all or part of neighboring work or work of another person without lawful title or authorization from the copyright holder, etc. (Automatic Consultation System of Copyright, Korea Copyright Commission).

- “Plagiarism” generally refers to the event that the overall feeling of two works is similar in addition to the actual expression between the two works are similar, and within such exists strong ethical condemnation for deceiving another person’s work as one’s own creation. Therefore, reproducing a creative expression of another person’s work may cause issues of plagiarism (Automatic Consultation System of Copyright, Korea Copyright Commission).

※ “Parody” refers to exaggerating or distorting a weakness or seriousness as the purpose of an original work renowned to the public regardless of the form of expression, notifying the result of such to criticize or cause laughter regarding the original work or social condition (Automatic Consultation System of Copyright, Korea Copyright Commission).

Types of copyright infringement

- Infringement of copyright in terms of the “Copyright Act” can be categorized as (1) infringement of author’s economic right, (2) infringement of author’s moral right, (3) infringement of publication right, (4) infringement of neighboring right, etc. (Automatic Consultation System of Copyright, Korea Copyright Commission).

Acts deemed as infringement

Acts deemed as infringement of copyright

- Any act falling under any of the following is considered to be infringement of copyright (Article 124(1) of the “Copyright Act”).

· The importation into the Republic of Korea, for the purpose of distribution therein of goods made by an act which would infringe on copyright if they were made within the Republic of Korea at the time of such importation

· The possession, for the purpose of distribution, of goods produced by an act that constitutes an infringement on copyright (including those imported above) with the knowledge of such infringement

- An act of using a work in a manner prejudicial to the honor or reputation of the author is considered to be an infringement of his or her moral rights (Article 124(2) of the “Copyright Act”).

Infringement of right of joint works

Infringement of right of joint works

- Each author of a joint work or each holder of author’s economic right to a joint work is entitled to make the demand (Article 123 of the “Copyright Act”) without the consent of other authors or other holders of author’s economic right, or to claim remuneration for damages to his or her share in a joint work regarding the infringement on author’s economic right (Article 125 of the “Copyright Act”) (Article 129 of the “Copyright Act”).

Decision standard of infringement of copyright

Decision standard of plagiarism

- If the actual similarity based on a music work is recognized, infringement of copyright is established.

- The precedent: (1) The relevant music has a creative part that is protected by the “Copyright Act.” (2) the user has used that part with the intention to reproduce, and (3) the used part is actually similar. The determination regarding actual similarity is focused on the melody part, but the harmony, rhythm, and the form of music should be collectively considered, and the qualitative part, whether how many bars are similar is not important (Seoul Central District Court Decided 2011Gahap70768 Decided February 10, 2012 Decision; Seoul High Court Decision October 13, 2010 2010Na35260 Decided October 13, 2010; Seoul District Court Decision 2006Gahap8583 Decided October 20, 2006; Seoul High Court Decision 2007Na70720 Decided September 23, 2008)

Decision standard of parody

- As there is no precedent of the Supreme Court regarding parody yet, there is no clear standard, but it is necessary to refer to the standard commonly presented by scholars in order to prevent a parody from infringing copyright (source: Automatic Consultation System of Copyright, Korea Copyright Commission).

· According to this, a parody should first be a criticism or satire of the original, and the viewers should know the fact that it is a criticism or satire of the original. If such fact cannot be known, and the original is misinterpreted as such, it is a “failed parody” and does not permit free use. Also, it is the majority opinion is that a parody in which the direct subject of criticism or satire is social reality (media parody) cannot be made without authorization of the copyright holder, and only cases in which the original itself is the subject of criticism or satire is allowed. Automatic Consultation System of Copyright, Korea Copyright Commission).

· Also, whether how much of the original has been borrowed also becomes a standard, and in order to be established as a parody, borrowing should be within the “extent of recalling the original.” There are different opinions regarding whether cases of borrowing beyond the minimum extent of recalling the original are permitted, but the majority opinion is that total borrowing or an exact copy without a single change should not be permitted for free use in terms of the Copyright Act even if it has the characteristics of a parody (source: Automatic Consultation System of Copyright, Korea Copyright Commission).

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