South Korea enacted a Three Strikes copyright law in April 2009, which came into force in July 2009. South Korea was the first country to disconnect Internet users under a three strikes law. 11 Internet users’ accounts were temporarily terminated by order of the Korean Minister of Culture, Sport and Tourism, in November 2010, and 17 users’ accounts were suspended in 2011.
DisconnectionCreated by: law
Internet users can be disconnected in several ways under South Korea’s three strike law:
- The Korean Minister of Culture, Sport and Tourism can order online service providers to suspend Internet users’ accounts for up to 6 months, after giving three warnings to remove or block allegedly infringing content.
- The Minister can issue orders to online service providers to suspend part or all of an online bulletin board or service (such as a webhard/ cyberlocker) which has received three orders directing it to delete or suspend transmission of particular content;
- The Korean Copyright Commission can make recommendations to online service providers to suspend particular users’ accounts for a non-defined period.
Suspension of Internet Users’ Accounts
Article 133-2 (1) of the Korean law empowers the Korean Minister of Culture, Sports and Tourism (the MCST) to order online service providers to:
(a) issue warnings to “reproducers and interactive transmitters” of infringing copies of copyrighted works and information about circumvention of technological protection measures that is sent through “information and telecommunication networks”: and
(b) delete or suspend interactive transmission of that material
If an alleged copier or transmitter that has received three of these warnings transmits a further allegedly infringing copy or TPM circumvention information, the MCST can order the online service provider to suspend the account for a period of up to 6 months (Article 133-2(2)). The law exempts email exclusive accounts from suspension. The Minister issued such warnings to 749 users’ accounts in 2010 and 220 users’ accounts during the first half of 2011.
In addition, the MCST can order online service providers to suspend part or all of a bulletin board established on an information and telecommunications network which has received three or more orders to delete or block particular online transmissions within a 6 month period, if it is considered to “seriously damage sound use of works, etc. in light of the format of the corresponding bulletin board, and the amount or nature of reproductions posted on it” (Article 133-2(4).
Before issuing a suspension order, the MCST must ask the Korea Copyright Commission to deliberate on various factors set out in Presidential Decree No. 21676 including the Internet user’s recidivism, the quantities of works allegedly reproduced or transmitted, the kinds of infringement, the possibility of market substitution, and the influence of infringing reproductions on the distribution order of works.
On receiving a MCST order to suspend an individual’s Internet access, online service providers must give the Internet user at least seven days’ notice of the impending suspension of their Internet account. On receiving a MCST order to suspend a bulletin board service, the OSP must give at least 10 days’ notices of the impending shutdown or part or all of the bulletin board notice by posting a notice on the bulletin board’s website.
The Presidential Decree prescribes the periods of suspension for Ministerial orders:
- Less than one month for a first suspension;
- Not less than one month and less than three months for a second suspension; and
- Not less than three months and less than six months for a third or subsequent suspension.
Suspension on Recommendation of Korea Copyright Commission
Perhaps more worryingly, individuals’ Internet and online services accounts can also be suspended for an indeterminate time period on the recommendation of the Korea Copyright Commission. Article 133-3 of the Korean law authorizes the Korea Copyright Commission to recommend to online service providers that they take corrective measures, in accordance with Presidential Decree No. 21676, including:
- Issuing a warning to an alleged reproducer/ transmitter;
- Deleting or blocking the transmission of allegedly copyright infringing material; and
- Suspending the account of an Internet user that has repeatedly reproduced or transmitted an allegedly infringing copy or TPM circumvention information.
The text of this Article leaves open the possibility of a KCC recommendation for suspension of users’ Internet access or online services account even where the account holder has not received a previous “strike” or warning. However, at the moment, the KCC follows a bylaw issued by the KCC that requires suspension recommendations only for accounts that have received three prior warnings or ”strikes”. (See clarification provided by Heesob Nam.)
According to the Korea Copyright Commission (http://www.copy112.or.kr), the Commission issued 42,794 warnings in 2010 and 54,268 warnings during the first half of 2011. Further, the Commission has recommended the suspension of 91 users’ accounts in 2010 and 54 accounts in 2011 (first half).read more...
BlockingCreated by: law
Article 104 of the Korea law provides that online service providers whose main purpose is to transmit information to one another using computers ("special online service providers", or what might be understood as ‘mere conduit ISPs’) shall, upon a rights-holder's request, implement technical measures blocking illegal transmission of the materials and other necessary measures. Details of what measures can be taken and requirements for valid rightsholder requests are set out in the Presidential Decree.
Facts and Figures
On 3 November 2010, the Korean Minister ordered the suspension of 11 Internet users’ accounts. This followed the publication in the Korean Government’s Official Gazette on 4 October 2010 of the names of the 11 users who had received three copyright infringement notices. Under the law, they had 24 days to file an appeal against suspension (none did).
As at 1 October 2010, 31 Internet users’ accounts had been suspended on the recommendation of the Korea Copyright Commission for a period of up to 1 month.
During the period from 23 July 2009 to 1 July 2010, the KCC issued 32,209 recommendations to OSPs to delete or suspend transmission of particular content, and 32,878 recommendations to OSPs to issue copyright infringement warnings.
Although the KCC is only empowered to make recommendations, according to South Korean legal scholar, and former Chair of NGO IP Left, Heesob Nam, almost all Korean OSPs acted on the recommendation. OSPs followed every KCC suspension recommendation; all but 40 recommendations for warning notices were followed, and all but 20 recommendations for deletion or suspension of particular transmissions were followed.
The Korea law includes various reporting requirements for OSPs, which should provide a useful source of future information about whether these sort of measures have any measurable impact in curbing online copyright infringement, as was claimed when they were enacted. Within five days from receiving an order from the Korea MCST to warn users or suspend or block a particular transmission, within ten days from receiving an order to suspend a user’s account, and within 15 days from receiving an order to suspend part or all of an online bulletin board service under Article 133-2(4), online service providers are required to notify the MCST of “the consequences of carrying out the order” as prescribed by the Presidential Decree.