Re-examining the compatibility of US fair use with Korean copyright law: challenges and suggestions for Korean fair use

Abstract

Korea introduced the fair use provision into the Korean Copyright Act following the model of the US system. Despite its adoption into the Korean Copyright Act, it has not been significantly relied upon by the courts of Korea. This article asserts that strong and robust fair use is crucial for achieving the objectives of Korean copyright law, which is a cultivating culture through copyright protection and facilitating the fair use of copyrighted works. Particularly important in the digital era, fair use serves as a pivotal tool for adapting the copyright system to rapid technological changes. Taking a legal transplant theory perspective, this paper evaluates the process of transplanting US fair use into Korean copyright law. It contends that the oversight of essential considerations during this process has led to a lack of balance between certainty and flexibility in Korean fair use. Following this analysis, this article offers recommendations to refine Korean fair use within the context of successful legal transplants. These recommendations will cover legislative revision, the roles of the courts and the involvement of legal experts to enhance legal certainty, ensure appropriate flexibility, and ultimately, promote the widespread use of Korean fair use.