FTA and Copyright Protection in Korea
© Springer-Verlag Berlin Heidelberg 2015
Christoph Antons and Reto M. Hilty (eds.)Intellectual Property and Free Trade Agreements in the Asia-Pacific RegionMPI Studies on Intellectual Property and Competition Law2410.1007/978-3-642-30888-8_13KORUS FTA and Copyright Protection in Korea
Abstract
The bilateral free trade agreement usually provides a strengthened or expanded protection of intellectual property. The KORUS FTA, ratified by the United States and Korea and effective, provides a higher standard of protection than other international treaties. By concluding bilateral free trade agreements, the United States achieves its goal for the higher protection of intellectual property in its trade partners. This chapter examines the KORUS FTA and its possible future effects on Korea. It first examines the protection and the infringement of copyright under the digital environment in Korea which has been the source of the main disputes between Korea and the United States. It then examines substantive copyright law and intellectual property enforcement rules of the KORUS FTA. This chapter argues, in conclusion, that the KORUS FTA will beneficially work toward the greater development of Korea’s economy.
Keywords
Access ControlCamcordingCopyright TermDigital EnvironmentInternet Service Provider (ISP)KORUS FTAStatutory DamagesTechnological MeasuresTemporary CopyAbbreviations
ASEAN
Association of South-East Asian Nations
EFTA
European Free Trade Association
FTA
Free Trade Agreement
GCC
Gulf Cooperation Council
KOREA-EU FTA
Korea and European Union Free Trade Agreement
KORUS FTA
Korea–United States Free Trade Agreement
TRIPS Agreement
Agreement on Trade-Related Aspects of Intellectual Property Rights
UAE
United Arab Emirates
UCC
Universal Copyright Convention
UNESCO
United Nations Educational Scientific and Cultural Organization
USTR
United States Trade Representative
WIPO
World Intellectual Property Organization
D.-H. Lee: LL.B., LL.M., M.L.I., S.J.D., Professor of Law.
1 Introduction
Free trade agreements (FTAs) have been very popular, in particular, between the United States and its trading partners. As of February 2012, the United States has FTAs with 17 countries, including Canada, Chile, Australia, Singapore, and so on.1 When it comes to free trade agreements, Korea is no exception. The FTAs between Korea and the United States, the European Union (EU), Chile, Singapore, the European Free Trade Association (EFTA) States (the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, and the Swiss Confederation), Peru and the Association of South-East Asian Nations (ASEAN) have already come into effect.2 The negotiation of the Korea-Turkey FTA has been concluded and it is to be ratified by both countries. In addition, Korea is negotiating FTAs with China, Canada, Mexico, Australia, the Gulf Cooperation Council (GCC) States (the Kingdom of Saudi Arabia, Kuwait, the United Arab Emirates, the Kingdom of Bahrain, the Sultanate of Oman, and Qatar), New Zealand, and Columbia.3 Korea’s most important FTAs are the free trade agreement between Korea and the United States of America Free Trade Agreement (hereinafter the KORUS FTA), concluded in April 2007, and that between Korea and European Union (hereinafter the KOREA-EU FTA), concluded in July 2009. Furthermore, Korea is planning to negotiate free trade agreements with such countries as Japan, MERCOSUR (Argentina, Brazil, Paraguay, and Uruguay), Israel, Vietnam, Central-America, Malaysia and Indonesia.4
Among the free trade agreements Korea has concluded, the KORUS FTA must be the most comprehensive bilateral free trade agreement, covering goods, agriculture, textiles and apparel, pharmaceutical products, technical barriers to trade, telecommunications and intellectual property (IP).5 Less attention has been paid to IP than to other issues, such as agricultural products, beef, automobiles and textiles. From the perspective of economic value, however, IP must be the most important area of all those that Korea has dealt with. Whether or not the KORUS FTA will be a springboard for Korea to leap into a developed country6 depends on future developments.7 Despite doubts expressed that it would not be ratified,8 the KORUS FTA was ratified in both countries in 2011. The KORUS FTA became effective on 15 March 2012.9 Korea had amended the Copyright Act in December 2011 in order to implement the KORUS FTA,10 and that amendment came into effect on the day the KORUS FTA became effective.
Copyright issues were the most controversial among all types of IP issues during the KORUS FTA negotiations. Furthermore, copyright issues compose a substantial part of the Agreement, and they have been the major subject matter of trade disputes between the United States and Korea since the mid-1980s, when, the United States began to put much pressure on Korea to provide IP protection.11 As a result of the 1986 negotiation, Korea and the United States reached an agreement to comprehensively amend the 1957 Copyright Act.12 In 1994, the Copyright Act was amended to reflect the stronger protection of copyright within and outside Korea. Compilations of data were protected if the selection or arrangement of their contents constitute intellectual creation, the term of neighbouring rights was extended from 20 to 50 years, and rental rights were recognized for phonograms and computer programs. The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter TRIPS Agreement) effective from January 1995,13 as well as Korea’s accession to the Berne Convention in 199614 also influenced copyright protection in Korea. The amendment, which took effect 1 July 1996, provided a retroactive protection for works of foreign authors in accordance with the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), which prescribes the protection of works that have not yet fallen into the public domain in the country of origin through the expiry of a term of protection (Berne Convention, Article 18.1). The Copyright Act also granted performers exclusive right of authorizing the fixation of their unfixed performances.
As far as intellectual property is concerned, copyright has been the main topic to Korea because it causes more issues than other intellectual property. International IP protection is essential as people travel all around the world. There are no geopolitical borders in utilizing intellectual property because intellectual property itself is intangible. As a result, many treaties—regional, multilateral and bilateral—have been concluded. Korea is a member of or a contracting party to many multilateral treaties on IP, the country having acceded to the following (in the year supplied): the WIPO Convention (1979);15 Paris Convention (1980);16 Patent Cooperation Treaty (1984);17 the Phonograms Convention18 and Universal Copyright Convention (1987);19 the Budapest Treaty (1988);20 the Berne Convention (1996); TRIPS Agreement (1994); the Nice Agreement21 and Strasbourg Agreement (1999);22 the Trademark Law Treaty23 and WIPO Copyright Treaty (2004);24 International Union for the Protection of New Varieties of Plants (UPOV) Convention,25 WIPO Performances and Phonograms Treaty,26 and Rome Convention (2009);27 and Vienna Agreement (2011).28 These treaties provide a minimum standard of protection that all member countries are required to recognize.
As far as providing a minimum standard of protection is concerned, the Berne Convention and the TRIPS Agreement are no exception. Indeed, the TRIPS Agreement is the ‘Berne PLUS’ system of copyright law.29 As of February 2012, the number of countries which have acceded to the WTO and to the Berne Convention is 153 and 165 respectively, and 89 to the WIPO Copyright Treaty (hereinafter WCT) and the WIPO Performances and Phonograms Treaty (hereinafter WPPT). Given the number of contracting parties to or member countries of international treaties, almost all of the countries in the world that are engaged in trade now provide a minimum protection for copyright. Although the minimum standard of protection is granted to intellectual property in those countries, the developed countries, in particular the United States, are not satisfied with that standard. Developed countries prefer an enhanced standard of protection. One of the strategies adopted to strengthen the minimum standard is to amend the international treaties, such as the TRIPS Agreement or the Berne Convention. This method represents an impractical or unrealistic approach for developed countries because the developing countries would not agree to the developed countries’ demands. This is all the more so the case given that only a short time has passed since the conclusion of the comprehensive TRIPS Agreement. A more practical method for developed countries to achieve a strengthened standard is to conclude a bilateral agreement with their major trade partners. With fewer parties involved, it is an approach that logically also has the potential to substantially reduce the time frame required for change to be secured. The United States would be the best example of a developed country that has adopted this approach.
Compared to multilateral agreements, the bilateral free trade agreement is designed to provide a strengthened or expanded protection for intellectual property. The KORUS FTA, which provides a higher standard of protection than other international treaties, is now in effect since Korea and the United States ratified it in 2011. This chapter examines the copyright issues associated with the KORUS FTA and its possible future effects on Korea. This chapter first examines the protection and the infringement of copyright in the Korean digital environment which have been the main source of disputes between Korea and United States. It then examines substantive copyright law and intellectual property enforcement rules of the KORUS FTA. In its conclusion, this chapter furthermore argues that the KORUS FTA will, beneficially, work toward the greater development of the Korean economy.
2 Copyright and Digital Environments
The history of intellectual property protection in Korea has been closely related to requests from the United States for protection of intellectual property. Despite earlier legislative amendments in this regard, Korea amended the Copyright Act several times even after the new millennium began so as to reflect developments in the digital environment and to deter internet piracy. The 2001 amendment to the Act extended the right of copyright owner to protect the interests online. The Act granted a new and exclusive right of making available of copyright works to the public in such a way that members of the public may access the works from a place and at a time individually chosen by them, and with such a right to include transmissions that occur from such making available of works.30 The Act extended this exclusive right to the owners of ‘neighbouring rights’ through a 2003 amendment. Reproduction by a photocopying machine that is set up for the public use is not eligible for the private use exception.31 The Act was further amended in an attempt to enforce copyright more effectively by strengthening the criminal penalty from a term of up to 3 years imprisonment and/or a fine of up to (South) Korean won) KRW 30 million (approximately around USD 26,000) to a term of up to 5 years imprisonment and/or a fine of up to KRW 50 million (approximately around USD 44,000) for infringement of economic rights.32
The Copyright Act was amended in May 2003 to implement the WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonograms Treaty (WPPT) which reflect digital environments in the area of copyright and related rights. First, the amendment provided protection for technological measures in section 124II) to the extent of prohibiting:
the act of providing, producing, importing, transferring, lending, or interactively transmitting technologies, services, products, devices, or significant parts thereof for the primary purpose of neutralizing technological protection measures for copyrights or other rights protected pursuant to this Act such as elimination, modification or bypassing thereof without legitimate rights.33
The prohibition was not extended to the circumvention of technological measures which control access to copyrighted works. This prohibition was legislated in the Copyright Act in June 2011 through an amendment for implementation of the Korea-EU FTA.
The concept of ‘technological measures’ first appeared internationally in the WCT and the WPPT in 1996.34 The Korean Copyright Act and Computer Program Protection Act (CPPA)35 legislated on technological measures in 2003 and 1999 respectively. Legislation on technological measures is designed to apply sanctions to the circumvention of those measures applied by copyright owners to protect their copyright. Technological measures may be divided into two categories: technological measures that control access to works (access control); and ones that protect copyright (copy control) (ones that prevent prohibited use by copyright being made of works after they are accessed).36 Unexpectedly,37 the 1998 Digital Millennium Copyright Act (DMCA)38 and the 2001 European Directive on Copyright,39 implementing anti-circumvention provisions of the WCT and the WPPT, create a new and unprecedented right to control access to copyrighted works. According to the DMCA, ‘no person shall circumvent a technological measure that effectively controls access to a work protected under’ the US Copyright Act.40 Because one who circumvents technological measures for access control is subject to civil and criminal liability, the DMCA provision on access control effectively grants an exclusive right,41 even if it may be exploited only with the application of technological measures. In access right (or right to access), access means ‘the right to control the manner in which members of the public apprehend the work’.42 Access control has been most controversial in the United States as well as between the United States and Korea. A potential tension between the use of access control measures and fair use is inevitable. The main argument against access control is that circumventing technological measures for access control for purposes of engaging in fair use or other non-infringing uses is not lawful.43 According to US courts, limitations and exceptions to copyright are not applicable to the circumvention of technological measures.44 The legislation on anti-circumvention may also be divided into two categories: a ban on anti-circumvention of technological measures themselves; and a ban on trafficking. For an example of the ban on trafficking, the US Copyright Act § 1201(a)(2) provides:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under [the US Copyright Act].45
Second, the amendment provided protection for rights management information.46 Section 124III of the 2003 amended text of the Act (section 104 ter with a slight alteration to the wording) provides that the act of intentionally eliminating, changing, or falsely adding right management information in electronic format, and the act of distributing, publicly performing, public transmission, or importing for the purpose of distribution of the original or reproduction of the works, and so on with the knowledge of the fact that right management information in an electronic format has been eliminated, changed, or falsely added is deemed to be copyright infringement. The 2011 amendment for implementing the KORUS FTA deleted the words ‘in electronic format’, thus expanding the scope of protection for rights management information.47
Third, the 2003 amendment provided limitations on copyright liability for internet service providers (ISPs) for materials on sites they provide if some requirements are met. The liability may be reduced or waived in those cases where the ISP prevents or stops reproduction or transmission of copyrighted materials when made aware that copyrights would be infringed upon due to the reproduction or interactive transmission of the materials by the other persons (section 102 I, now replaced by safe harbour provisions through the 2011 amendment).48 Furthermore, the liability is waived in those cases where an ISP attempts to prevent or stop reproduction or interactive transmission of materials when made aware that copyrights would be infringed upon due to the reproduction or interactive transmission of the materials by the other persons, but it is technically impossible to do so (then and now section 102 II, but with a few changes of wording). Finally, the amendment provided the notice and takedown procedure according to which the ISP is immune regarding liability for copyright owners or sender of materials if it meets the procedure requirements (section 103).
Fourth, adopting the doctrine of ‘sweat of brow’, sui generis protection was granted to databases, defined in section 2 to be ‘a compilation that arranges or composes subject matters systematically so that one can individually access or search such subject matters’.49 While protected under the Copyright Act, rights granted to databases are similar to neighbouring rights. In 2006, the Copyright Act was amended most comprehensively since its 1986 amendment. First, and most important is the expansion of performers’ rights guaranteed by the amendment. Korea prepared for its accession to the WPPT through this amendment. It granted moral rights to performers: right of attribution and right of integrity (sections 66, 67). Second, in order to deter copyright infringement through the P2P network, the amendment required special types of ISP (such as P2P service providers) to take necessary measures to intercept illegal interactive transmission of works (section 104). This provision on ‘filtering’ is based upon the Grokster case of the US Supreme Court,50 which adopted the inducement rule. In this case, in determining whether or not a defendant induces third parties to infringe copyright, the fact that a defendant attempts to develop filtering tools or other mechanisms to diminish the infringing activity is a very important factor. Third, the 2006 amendment extended copyright to control digital audio transmission,51 and required the digital audio transmission service providers to pay remuneration to performers and producers of phonograms (sections 18, 76, 83).
Fourth, the limitation to foreign performers’ and phonogram producers’ right to remuneration for using phonograms for broadcasting was repealed, switching to reciprocity (sections 75 I, 83 I).
Fifth, copyright infringers were made subject to criminal prosecution without copyright owner’s complaint if a person infringes copyright habitually for profit-making purposes (sections 136Ii, 140i, emphasis added).
3 KORUS FTA
3.1 US Trade Policy on Intellectual Property
The Working Group on Intellectual Property formed by the US National Information Infrastructure Task Force (IITF) released a final version of its report known as the ‘White Paper’ in September 1995.52 While the White Paper holds that existing copyright law needed only the fine-tuning that technological advances necessitated in order to maintain the balance of the law in the face of onrushing technology,53 it seems to be designed to strengthen or expand the scope of copyright rather than strike a delicate balance between the interests of copyright owners and users. The White Paper suggests that copyright is infringed whenever users make even temporary reproductions of works in the random access memories (RAM) of their computers; that digital transmissions be regarded as distributions of copies to the public; that fair-use rights be eliminated whenever a use might be licensed; that the first sale rights be deprived because the White Paper treats electronic forwarding as a violation of both reproduction and distribution rights; that copyright management information to digital copies of a work be attached, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the network and what is being done with it at any time; that any attempt to circumvent the protection (by encryption, for example) be illegal; and that online service providers become copyright police.54
The US Administration’s position as represented in the White Paper has lasted even to the present day. It was reflected in the negotiation of the WCT and the WPPT and several free trade agreements the United States concluded, and continues to be reflected in US trade negotiations with its trading partners. As might be seen in the Special 301 Report and the National Trade Estimate Report on Foreign Trade Barriers (NTE Report) of the United States Trade Representative, Korea is no exception. In 2004, for example, when Korea was elevated from the Watch List to the Priority Watch List, the USTR indicated in the NTE Report that the US government remains concerned with respect to Korea’s legal regime for the protection of temporary copies, technological protection measures, internet service providers (ISP) liability, reciprocity provisions regarding database protection, ex parte relief, the lack of full retroactive protection for pre-existing copyrighted works, and copyright term extension.55 It is no surprise that the KORUS FTA (concluded in April 2007) covers all of the issues above; and furthermore, it provides strong enforcement of intellectual property, a matter that the United States has persistently addressed in the Special 301 and the NTE Report.
3.2 Substantive Copyright Law in the KORUS FTA
3.2.1 Temporary Copies
Whether or not a copy made in RAM qualifies as a copy controllable by the copyright owner was hotly debated in the early 1990s in the United States. The Ninth Circuit in MAI System Corp v Peak Computer, Inc56 and its progeny held that the loading of software into the RAM creates a copy under the Copyright Act.57 In the negotiation process for the WCT and the WPPT in 1996, the draft provision treating temporary copies as reproduction58 was finally rejected. However, the United States proposed that a statement of the reproduction right be accepted in the ‘agreed-upon statement of interpretation’ of the WCT. While the statements59 seem to endorse the temporary copies, given that the draft provision was deleted, there was no international consensus on the issue of temporary copies.60
Despite no international consensus on temporary copies, one of the main foci of the United States, in particular in relation to Korea since the late 1990s, is the issue of temporary copies. For example, the 2003 the Special 301 Report indicated that: ‘The United States concerns remain with respect to the protection of temporary copies.’ Why has the United States tried to include the temporary copies within the ambit of reproduction? Nowadays, the enjoyment of copyrighted works without owning its tangible medium (such as CDs, DVDs, or cassette tapes) has become very popular, and it would form a main stream of copyrighted works. In particular, in Korea—the top IT country together with Finland—users may enjoy cinematographic works by downloading digital files, or by using video-on-demand (VoD) or IP TV rather than by using DVDs or video tapes; and enjoy musical works by downloading digital files, or by using audio-on-demand (AoD) or streaming services. As software may be streamed, users need no longer buy software CDs or DVDs, and may not need to subscribe to software to install it in the computer.
The issue on temporary copies was the first topic on the KORUS FTA copyright agenda, and the issue most hotly debated by Korea and the United States. Korea was reluctant to recognize the concept of temporary copies because Korea believed that copyright owners can be protected without recognizing temporary copies. Under the Korean Copyright Act, copyright and neighboring right owners may authorize or prohibit making available of works, performances, and phonograms to the public in such a way that members of the public may access them from a place and at a time individually chosen by them and the transmissions occurring from such making available of works, performances and phonograms (sections 2, 18, 74, 81). In order to provide this kind of interactive transmission service, the service provider should be licensed to use the work. By controlling the service providers, the copyright owners may be protected. In addition, in the case of computer programs, copyright owners may design the contract with the person who provides software service by streaming, for example, by concluding the contract for network users. While Korea adopted the concept of temporary copies in the FTA, it also tried to provide as wide as possible an exception to temporary copies on the ground that individual users accidently face copyright infringement as more advanced technologies may be developed. Among the FTAs that the United States has concluded, only the FTA between the United States and Chile provides a general limitation to temporary reproduction.61
3.2.2 Technological Measures: Access Control
While the Korean Copyright Act and the CPPA implemented the WCT and WPPT by legislating the provision on technological measures, they did not recognize the idea of access control.64 Access control may play an important role in allowing price differentiation as well as in protecting copyright. Limitations and exception to anti-circumvention differ from those for copyright infringement, and fair use cannot be applied to anti-circumvention, limiting public access to the copyrighted work. Access control has also been the major subject for negotiation during formulation of the KORUS FTA. During the negotiation for the KORUS FTA, the most controversial issues on technological measures were whether the anti-circumvention of access control should be banned, whether wilfulness or negligence is required for the violation of the anti-circumvention provision, and whether limitations or exceptions to copyright infringement are applicable to the ban on anti-circumvention. First, Korea and the United States reached a compromise to allow for copyright owners to effectively control access to copyrighted works, creating a new exclusive right.65
Second, an additional requirement for access control needs to be met, namely that the violator knew or should have known that he or she circumvents without authority any effective technological measures [Article 18.4.7(i) of the KORUS FTA]. Korea insisted that wilfulness or negligence be required for the violation. The requirement for wilfulness or negligence is the same as the EU Copyright Directive,66 but as such differs from the US requirements. In the United States, one violates the anti-circumvention provision simply by undertaking the prohibited acts, whether or not one knew or should have known that one is undertaking the prohibited acts. The US Copyright Act merely reduces or remits damages in the absence of willfulness or negligence.67 While the result of the provision may be similar, the approach of not requiring wilfulness or negligence is quite different from that requiring them. To negate the violation is quite different from reducing or remitting damages. At the request of the United States, however, the KORUS FTA provides that violators of the provision on technological measures for access control are subject to provisional measures, court costs and attorney’s fees, and the destruction of devices and products found to be involved in the prohibited activity.68
Third, limitations or exceptions to the anti-circumvention provision are quite different from those to copyright infringement. This issue concerns whether the fair use exception is applicable to the circumvention of technological measures for access control. According to US courts, the legislation on copyright is completely different from that on technological measures, and thus, limitations and exceptions to copyright infringement are also different from those for the circumvention of technological measures.69 The US Copyright Act provides limitations applicable only to the violation of anti-circumvention provision.70 Almost all of the bilateral free trade agreements the United States has concluded include a provision providing that ‘a violation of a measure implementing [the paragraph on technological measures] is a separate cause of action, independent of any infringement that might occur under the Party’s law on copyright and related rights.’71 In accordance with this approach, the KORUS FTA provides separate exceptions to the violation of the anti-circumvention provision just as the DMCA provides.
3.2.3 Copyright Term
The copyright issue that attracted much attention from the general public during the negotiation process of the KORUS FTA was the copyright term. The extension of the copyright term is the best example of the strengthening of copyright by developed countries. Under the current Korean Copyright Act, the copyright term is basically ‘the life time of an author and until the end of a period of 50 years after the death of an author’ (section 39I), and the term of neighboring rights is 50 years from the beginning of the year when the performance took place, when the phonogram was published for phonograms, and when the broadcast was made (section 86II). The EU extended the copyright term by its Directive on the Copyright Term (1999) (Articles 1, 3)72 and the United States extended the copyright term by 20 years under the Sony Bono Copyright Term Extension Act 1998 (US) (§ 302).73
Korea was very reluctant to accept the US proposal to extend the copyright term by 20 years for fear that the copyright royalty paid to the United States would be increased, and that the general public would criticize the government for poor negotiations. The compromise on the copyright term issue was the last agreed between the two countries, and both agreed to extend the term.74 Korea, however, could delay the effective date of the copyright term extension by 2 years after the KORUS FTA becomes effective.75
3.2.4 Limitations on ISP Liability
Under the previous Korean Copyright Act, the liability of ISPs for infringement by other persons on copyright may be immune or reduced as follows: first, the liability may be reduced or waived in those cases where ISPs prevent or stop reproduction or transmission thereof when made aware that copyrights would be infringed upon due to the reproduction or interactive transmission of works by the other persons (section 102I, currently deleted); second, the liability may be reduced or waived in those cases where ISPs attempt to prevent or stop reproduction or interactive transmission of works when they were made aware that copyrights would be infringed upon due to the reproduction or interactive transmission of works by the other persons, but it is technically impossible to do so (section 102II). The Copyright Act also provides a notice and takedown procedure basically immunizing the ISP from liability to copyright owners or users if the ISP complies with the procedure. Section 103 outlines the responsibility of the ISP to (i) upon notification of claimed infringement, respond expeditiously to remove, or disable access to, the material claimed to be infringing, (ii) notify the claimed infringer of the removal, and (iii) upon the counter-notice by the accused infringer, respond to upload and make it available.
The issues regarding the limitation of the ISP liability during the negotiation were whether Korea would adopt a set of safe harbor provisions for ISPs, and whether ISPs are subject to a responsibility to provide the identification of an alleged infringer to copyright owners. On the second issue, the problem is how to reconcile the interest of copyright owners and the personal information of an alleged infringer. First, Korea adopted the US proposal to legislate four sets of safe harbor provisions and requirements for immunization for each set. The limitation of the ISP liability is very similar to, rather almost the same as, the US Copyright Act. Under the KORUS FTA, ISPs are immune from their liability under four safe harbour provisions, and they need to meet requirements for immunization (Article 18.10.30). The US Copyright Act immunizes the ISP from liability under four defined sets of safe harbour provisions: that is, transitory digital network communications; system caching; information residing on systems at direction of users; and information location tools.76
Second, the KORUS FTA provides that ISPs adopt and reasonably implement a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers (Article 18.10.30 (b)(vi)(A)). This is a requirement for ISPs to meet for safe harbours. However, ISPs are not required to monitor its service, or affirmatively seek facts indicating infringing activity (Article 18.10.30 (b)(vii)).
Third, the KORUS FTA provides that an administrative or judicial procedure shall be established to enable copyright owners who have given effective notification of claim of infringement to obtain expeditiously from a service provider information in its possession identifying the alleged infringer (Article 18.10.30 (b)(xi)).77