UCC (User-created Contents) and Fair Use in Korea: In Light of Son Dam-bi Decision

The first draft of this article was presented at the 1st Joint Symposium between Seoul National University and Ludwig-Maximilians-Universität München (University of Munich) on Current Developments in International Economic Law held in Seoul, Korea from September 21 to 22, 2011.UCCs came to be sensational in recent years with easier ways to create sophisticated UCCs and the webs enhanced ability to connect users. Creating UCCs, especially when accompanied by the use of existing copyrighted works,may give rise to problems of copyright infringement and fair use. Seoul High Courts 2010 decision that a blog post with a video recording of a child singing and dancing to a hit Korean song constitutes fair use is only a beginning to the upcoming surge in copyright disputes surrounding UCCs. Recent decisions by Korean Courts on unwarranted use of existing works engage in fair use analysis by means of Article 28 of the Copyright Act on fair quotation, but the increase in fair use disputes calls for a general provision on fair use. Bills to incorporate a general provision have been submitted, most of which include a four-factor test from 17 U.S.C. §107. Even when a general clause is incorporated, specific ways in which the clause is interpreted and applied would have to come from the courts. All four factors do play a role, but whether the use of the work is transformative should be critical in assessing all of the variables