Article 35-quinquies of the Korean Copyright Act, referred to as the ‘Fair Use’ provision, is a complementary general clause for limiting copyrights, and unlike other individual limiting clauses that focus on requirements, it focuses on comprehensive exceptions and factors to be considered in its analysis. This provision is modeled after Section 107 of the U.S. Copyright Act, which has a long history of interpretation and application of fair use law, thus it is necessary to refer to the abundant interpretive cases of the United States in order to ensure that the Fair Use provision of the Korean Copyright Act function properly.
This article introduces the highlights of the recent fair use decision of the U.S. Supreme Court (“SCOTUS”) in Andy Warhol Foundation v. Goldsmith (“Subject Decision”), which has received the most attention, and examines its implications.
SCOTUS focused on the analysis of the first fair use factor, the “the purpose and character of the use,” and found that the transformative purpose and commercial nature of the use are each a matter of degree, along with which the justification of the copying needs to be considered, and made it clear that fair use analysis must be made individually in the context of the specific use at issue. The main judgments of these cases are highly instructive for the interpretation and application of Article 35-quinquies, which was imported from the U.S. fair use provision, but there are certain points to note when referring to Subject Decision. First, this case shows that the fair use provision was designed to be applied faithfully to the common law methodology and is being interpreted and applied in accordance with its design intent. As such, when applying the Fair Use provision, which is similar in both formal and substantial aspects, it should be recog nized that there are certain limitations in establishing abstract criteria that can be generalized to fair use, especially in terms of first factor analysis. Second, cautions are to be given to generalizing the specific dicta of the Subject Decision. When referring to the logic of the Subject Decision in a particular case where fair use is at issue, the preferred manner of applying the provision should be not to follow case law formalistically, but to reconstruct the legal justification necessary to resolve the issue at hand, taking into account the specificity of the case.
The Subject Decision suggests an increase in the complexity of fair use analysis. While this has the advantage of maximizing flexibility in response to changing circumstances, it also raises the concern that it will significantly reduce the predictability of Fair Use provision. This may have an even greater adverse effect in relation to the application of the provision of Korean Copyright Act, which is stated more abstract and open-ended than the U.S. fair use provision. In particular, it may increase the structural difficulties in determining copyright infringement in the field of artificial intelligence, which generally includes a series of complex steps, reminding us of the need for more precise interpretation and application of the law. At the same time, the diminished legal stability implied by the Subject Decision is expected to provide at least a partial basis for the enactment of TDM exception provision, which is related to the use in the AI learning. It is worth keeping an eye on how the impact of the Subject Decision will be realized in the future.