“There is No Such Thing as ‘Illegal’ Downloading!”

One popular K-POP singer, Jang-hoon Kim, was accused of copyright infringement for his downloading a movie file for “Taken 3.” The accusation was made by a right-wing group, which has nothing to do with the filmmaker. Nor is the group in touch with creative industries. But they publicly rebuked the singer as breaking the law, namely violation of the Copyright Act.

However, Jang-hoon’s downloading “Taken 3” is totally legitimate for it is a reproduction for private use. Article 30 of the Copyright Act provides that:

“It shall be permissible for a user to reproduce in private, without any commercial purposes, a work already made public, within the limit of personal, family or the equivalent use.” Downloading a movie for watching it at home falls within this provision and therefore there is no illegality.

To make a so-called “illegal downloading” illegal, we need to amend the Copyright Act. We know that in one case, the first-instance court denied the private use defence for a downloading from an unlawful source (Seoul District Court, 2008 Kahap 968, Korean text and a short English summary of the case – “Country Update for Korea by Won H. Cho”). But this decision is flawed in that the court went beyond the limit of judicial power of law interpretation and criticized by the majority of legal experts.

Japan changed its Copyright Act in 2009 to exclude a knowingly downloading a music or audio-visual file from an unlawful source from the legitimate private copying, and such an act became  criminal in as late as 2012, of which sanction is relatively weak (an imprisonment of shorter than two years or a fine of less than two million Yens: the Japanese basic rule is up to ten years imprisonment or ten million Yens fine). Also Germany revised the Law on Copyright and Related Rights in 2008, under which downloading from a source “obviously unlawful” or “unlawfully made available to the public” is banned. In Korea, a proposal to amend the Copyright Act was introduced in 2005, trying to rule out “knowingly reproducing copies which are either made by infringing copyright or distributed, broadcasted or transmitted without legitimate right.” But the bill faced strong oppositions and failed to pass through the lawmaking body.

Therefore, alleging that Jang-hoon’s downloading “Taken 3” is a violation of copyright law only shows the lack of knowledge of the law. Even under the 2005 proposal, or under the Japanese or German laws, his act is not criminal. Actually Jang-hoon downloaded “Taken 3” from QDown, a cyberlocker or so-called webhard service provider. The QDown is one of the value-added telecommunication service providers which have been statutorily registered with the Ministry of Science, ICT and Future Planning, and adopts filtering technologies which met the criteria set by the Korea Copyright Commission. On QDown, there are lots of legitimate files (most of the TV programme files are under contract with three major broadcasters and the revenue of broadcasters amounts to several tens of billion KRW each year) and Jang-hoon made a payment for his downloading. Thus it is difficult to say that Jang-hoon has an obvious knowledge of illegality or intention for the criminal liability.

Those who have tagged an illegality label to the statutorily lawful downloading are the very copyright industries. Their “Good Downloader Campaign” portrays every private copying as a wrongdoing and criminally punishable. What was worse is they produced a public service advertisement and has long misled people to believe that all Internet downloading is illegal. But surprisingly enough, the official response of KOBAKO (producer of the ad with about 1.5 billion KRW) in 2010 was that non-commercial private downloading is lawful under the Article 30 of the Copyright Act.

The file sharing of music and movie files on the Internet is not a matter easily addressed. One thing to consider is that private copying is not always harmful to copyright holders. Regarding the problem of a third of Swiss people downloading pirate music, movie and video games from the Internet, the action of the Swiss government is to maintain the current law permitting private copying. She relied upon a study report concluding that saved money by downloading is eventually spent in taking part in legitimate cultural activities such as visiting concerts, and buying more video games (Swiss Govt: Downloading Movies and Music Will Stay Legal).

If the copyright law is changed to define the legitimate private copying on the sole basis of source’s lawfulness, we may allow the copyright law and copyright police enter into our personal space. For instance, putting down a poem on your notebook (this is a copying under the meaning of the copyright law) from an unauthorized blog posting (i.e., from an unlawful source) becomes illegal. Private copying, when we call a problem, can be solved with very fine-tuned institutions such as a private copying levy system. Until then, we should be allowed to call legal activity legal.