Unofficial Translation of the “Three Strike Out (Graduated Response)” Provision in the Copyright Law Amendment Bill proposed by the Ministry of Culture, Sports and Tourism in July, 2008

10/10/08

IPLeft

About this document and the bill

This is an unofficial translation done by IPLeft. This is not a translation of the entire bill. Only the article 133-2 is translated.

The bill was announced on the Ministry of Culture, Sports and Tourism (MCST) web site on July 16, 2008. The bill is expected to be introduced to the National Assembly during its 2008 regular session which opened September 1 and will continue for 100 days until December 10.

The bill includes four major amendments to the Copyright Act: 1) integrating the Computer Programs Protection Act into the Copyright Act, 2) providing computer program works related exceptions (article 101 bis to article 101-2), 3) establishing the Korean Copyright Commission (article 112, 112-2), and 4) providing so called “three strike out” or “graduated response” measures (article 133-2).

Readers can reach an English translation of the Copyright Act by the copyright commission at http://eng.copyright.or.kr/law_01_01.html.

Article 133-2 (Deletion of Illegal Reproductions through information and telecommunication networks, etc.)

(1) In the cases where reproductions or information which infringe copyrights and other rights protected according to this Act, or programs or information (hereinafter referred to as "illegal reproductions, etc.") which neutralize technological protection measures are interactively transmitted through information and telecommunication networks, the Minister of Culture, Sports and Tourism may order online service providers any of the following measures as prescribed under the Presidential Decree after the deliberation by the Commission :

1. Warning reproducers/interactively transmitters of Illegal reproductions, etc.

2. Deletion or stopping transmission of illegal reproductions, etc.

(2) In cases where reproducers/transmitters who have been warned pursuant to Subparagraph 1 of Paragraph (1) repeatedly transmitted illegal reproductions, etc., the Minister of Culture, Sports, and Tourism may order online service providers to suspend or terminate the accounts (which mean the use privilege accounts that the online service providers use to identify and manage users) of those reproducers/transmitters (in such cases, including the other accounts of such reproducers/transmitters) as prescribed under the Presidential Decree after the deliberation by the Commission.

(3) The Minister of Culture, Sports, and Tourism may order online service providers to close the bulletin boards that have received orders under Subparagraph 2 of Paragraph (1) more than three times among bulletin boards (which refer to such bulletin boards as provided in Subparagraph 9, Paragraph 1, Article 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection. hereinafter the same shall apply) on information and telecommunication networks as prescribed under the Presidential Decree after the deliberation by the Commission.

(4) In cases where an online service provider falls under one of the following Subparagraphs and it is considered that the order of use of works, etc. is seriously damaged due to the services of concern in light of the manner of the services and quantity and characteristics of transmitted reproductions, the Minister of Culture, Sports, and Tourism may order information and communication service providers (which refer to such information and telecommunication service providers as provided in Subparagraph 3, Paragraph 1, Article 2 of the Act on Promotion of Information and Communications Network Utilization and Information Protection.) to block connections to their information and telecommunication network of such online service providers as prescribed under the Presidential Decree after the deliberation by the Commission.

1. has been subject to fine under Paragraph (1) of Article 142 twice and becomes the object of the fine of the same kind again because it fails to take necessary measures pursuant to Paragraph (1) of Article 104

2. has been subject to fine under Subparagraph 3 of Paragraph 2 of Article 142 three times and becomes the object of the fine of the same kind again because it fails to abide by orders of the Minister of Culture, Sports and Tourism under Subparagraph 2 of Paragraph (1), Paragraph (2) or Paragraph (3)

(5) An online service provider or an information and telecommunication service provides who has received order under Paragraph (1) to (4) shall notify the result of its measures to the Minister of Culture, Sports and Tourism within three days after it received the order as prescribed under the Presidential Decree.

(6) The Minister of Culture, Sports and Tourism shall provide the online service provider who is subject to the order under Paragraph (1) to (4) with an opportunity to submit its opinion beforehand.

(7) The regulation in Paragraph (4) to (6) of Article 22 or Article 27 of Administrative Procedure Act , shall apply mutatis mutandis to foregoing Paragraph 6 with regard to opinion submission.