A balance between flexibility and certainty in fair use : analysis of the compatibility of US fair use and Canadian fair dealing with Korean copyright law

In 2011, the Korean fair use provision, based on US fair use model, was introduced into the Korean copyright system. Since its adoption in the Korean Copyright Act, however, it has not been significantly relied upon by the courts of Korea. This thesis takes the position that strong and robust fair use is necessary in order to fulfill the purpose of Korean copyright law, which is to progress culture by protecting copyright and promoting the fair use of copyright works. Fair use could serve as a tool to attain a balance between these interests. Furthermore, fair use is particularly important in the digital era to ensure the copyright system can adapt to rapid technological changes. Given this standpoint, the aim of this thesis is threefold: First, to identify the US fair use’s incompatibility with Korean copyright law as a problem of Korean fair use. Second, to explore whether another model – mainly Canada’s fair dealing defense – may be more compatible with Korean copyright law. Lastly, to provide suggestions for increasing the widespread use of fair use in Korea by enhancing legal certainty and ensuring appropriate flexibility. These suggestions will cover the revision of the legislation, the role of the Courts, and legal experts, highlighting the significant role of fair use doctrine. To this end, this thesis will rely on the legal transplant theory. First, the process of legal transplant of US fair use into Korean copyright law will be assessed from the perspective of legal transplant theory. The thesis will argue that the failure to account for the necessary considerations during the transplantation of US fair use has resulted in a lack of balance between certainty and flexibility in Korean fair use. Second, the thesis will analyze the cultural and historical context of Canadian fair dealing to examine its compatibility with Korean copyright law. Lastly, this thesis will offer recommendations for Korean fair use in the context of successful legal transplant