KTV has filed a police complaint against singer ‘Baekja’ for copyright infringement regarding a video titled “(The Presidential Office is calling) We need impeachment~#SatiricalSong” that Baekja uploaded to their YouTube channel in February. The first police investigation is taking place today(August 1, 2024). KTV’s act of filing a complaint against the presidential satire video is a serious anti-democratic action where a public institution misuses copyright law to suppress critical expression against the government and the president, and threatens citizens through criminal procedure. OpenNet urges KTV to withdraw its unreasonable criminal complaint that infringes on the freedom of political expression and also calls on video platforms to reject unfounded deletion requests from public institutions.
According to the complaint, KTV claims that Baekja infringed on their economic rights (Article 136, Paragraph 1, Clause 1) and moral rights by copying and processing videos produced by KTV. However, as KTV itself states through its copyright policy, KTV’s works are public works, and Article 24-2 of the Copyright Act stipulates that works of the state or local governments can be used without permission, so KTV’s works can be freely used. The purpose of this legal provision is that works created with public resources for public interest should be freely available to all people. Even if KTV has set a purpose for use, KTV’s copyright policy cannot take precedence over the law. Additionally, parodies for satirical purposes should be protected as ‘fair use’ under Article 35-5 of the Copyright Act, as they do not conflict with the use of the original work and do not unreasonably harm the legitimate interests of the author. Therefore, it is not possible to punish for copyright infringement (Article 136, Paragraph 1, Clause 1) solely for using KTV’s video material.
KTV also claims that Baekja infringed on KTV’s moral rights by violating the right of attribution for not indicating the copyright holder’s real name when copying the video, and by violating the right of integrity for processing the video. However, moral rights are intended to prevent actions that disrupt the relationship between creators and their creations, thereby damaging the ‘social reputation gained through the creation of works’ (Supreme Court Decision 2020Do10180, November 30, 2023). An infringement of the right of attribution occurs when ‘the credit for creation is stolen by not indicating the name on the victim’s work,’ while an infringement of the right of integrity occurs when ‘the content of the victim’s work is arbitrarily and significantly altered to distort the creative intent to the extent that it damages the creator’s reputation.’ In other words, punishment for copyright infringement due to violation of moral rights (Article 136, Paragraph 2, Clause 1) is only possible in cases where the original video of the president singing with Presidential Office staff could be mistaken as singer Baekja’s work, or where the general public could misunderstand KTV’s creative intent as criticism of the president, thus potentially damaging KTV’s social reputation.
However, Baekja clearly stated in the video title that it was a satirical work and that he sang the song himself, and it is objectively evident that it is a parody. In other words, it is clear that there is a separate original work being satirized, so no one would mistakenly believe singer Baekja to be the author of the original video. Additionally, no one would misunderstand that KTV created a video of the president singing about his own need for impeachment. If punishment were to be given merely for severely altering a work, parodies would cease to exist. Therefore, this video cannot be considered to infringe on moral rights in violation of the Copyright Act.
This criminal complaint by KTV, following the ‘defamation’ lawsuit against the People Power Party’s satirical “Yoon Suk-yeol conscience confession” video, is a seriously anti-democratic and criminally threatens citizens and infringes on the freedom of political expression in order to protect the president’s feelings and suppress government-critical public opinion. As claiming ‘defamation’ against satirical works has its limits, it seems that now public institutions are stepping forward to make unreasonable claims of ‘copyright infringement’ instead.
Notably, separate from this criminal complaint, Baekja’s video was deleted from YouTube despite there being no copyright infringement. It appears that Google, YouTube’s operator, deleted the video in accordance with Article 103 of the Copyright Act, based on KTV’s claim of copyright infringement. Articles 102 and 103 of the Copyright Act are the legislated form of the principle of limiting intermediary liability, an international human rights standard that Open Net has been advocating for. This ensures procedural rights for both parties: the service provider first complies with the rights holder’s deletion request but also accepts the poster’s request for reinstatement, thus limiting the intermediary’s liability. Online service providers worldwide, not just in Korea, have used this system to maintain the balance between posters and rights holders. However, there have been many cases where content was unfairly deleted due to copyright-based removal requests made by rights holders who knew there was no actual copyright infringement. Consequently, Article 103, Paragraph 6 of the Copyright Act imposes liability for damages on those who make removal requests without legitimate rights. In fact, in 2010, the Korea Music Copyright Association had to compensate a video poster after requesting the removal of a video of a child singing along to singer Son Dam-bi’s song ‘Crazy’. Regarding the deletion of the aforementioned video at KTV’s request, Open Net will consider possible legal measures.
August 1, 2024
Open Net Korea
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