IPLeft\’s Position on Access to Knowledge
1. Intellectual Products must be shared
Intellectual Property System assumedthat information and knowledge are originated from the producer. But, historically, intellectual products do not exist without communication and sharing with others, without socially accumulated knowledge base. Information and knowledge can not be created from \’nothing,\’ but from social intellectual assets that was constituted of historically accumulated experiences and efforts. And created intellectual products have been used, modified, and resolved to social assets. But current IP system grant all rights with producer(or investor) who have contributed partially to creation. So We must recognize historic and social characteristics collaborated contribution on knowledge production.
2. Right on a2k is basic of digital age
1) Everyone must access and use information freely, we should not allow restrictions and distinctions by classes and levels like one\’s job, sex, region, human race, and so on. Especially we have to access public information which are required essentially, used commonly, invented by public funds, and have to use freely and equally. And use of information for education, research, private use, noncommercial use do not restrict by IP rights.
2) IP rights as copyright, patent, trademark right etc. should not be prior to rights of a2k. excessive protection of IP make information divide along with classes and levels. Information divide reproduce economic divide and social power divide. Making decision within provinces or internations should dissolve information divide, and pursue the weak\’s interests than the strong\’s.
3) Main method to dissolve information divide is enlargement of public domain. It can be pursued by reduction of protection periods and bounds, and by encouragement of information production method without acknowledge of exclusive rights.
3. The dignity of human and life, human rights are prior to IP rights
1) Property holder\’s rights to IP products should not protect excessively to invade user\’s rights.
2) IP rights to discovery and invention subject to living things and a part of them should not destroy the dignity of human and life, environment, health, and so on.
3) Personal privacy is not infringed by protection of IP rights.
4) We do not use IP rights as a method of restriction to free expression.
5) IP rights should not be used as a method of restraint to the people with different political views, the weak and the minor.
4. We must recognize various values and autonomies to production and consumption of IP products
1) Nations and communities have a right to their individual values and principals of governance. And they should not be enforced to accept internationally singular IP system. IP system is one of many principals of governance.
2) There must be political supports to maintenance of individual values and principals of governance than \’principal of markets\’ in knowledge production. We should support public knowledge production institutions like school and research institution, copyleft movement as spontaneous production area of civil society, and protect transmitted knowledge of communities like traditional medical care.
Korean Situations Related to Intellectual Property Rights and Access to Knowledge
1. Introduction of Legal Systems in Korea
Intellectual Property Acts
Purpose of Act
Administration Authorities
Copyright Act
To protect the rights of authors and the rights neighboring on them and to promote fair use of works in order to contribute to the improvement and development of culture.
Ministry of Culture and Tourism
Computer Software Protection Act
A Copyright Law Special for Computer Software
Ministry of Information and Communication
On-line Digital Contents Industry Development Act
To protect Digital Contents and Investment
Ministry of Information and Communication
Patent Act
Trademark Act,
Utility Model Act
Design Act
KIPO (the Korean Intellectual Property Office)
Semiconductor Integrated Circuits Lay-out Design Act
To contribute to the sound development of the national economy by protecting the right of a creator who creates a layout design for semiconductor integrated circuits and by establishing the fair use of layout designs to promote the semiconductor industry and technology.
KIPO
Unfair Competition Prevention and Trade Secret Protection Act
To prevent acts of unfair competition such as improper use of domestically well-known trademarks and trade names, and To prevent infringement of trade secrets.
KIPO
Variety Industry Act
New Seed Variety Protection
Ministry of Agriculture and Forestry
2. Recent Issues Related to Intellectual Property Rights and IPLeft\’s Positions
[General IPLeft\’s Positions]
1. Public Subsidy for Citizen Activities to Enhance Production and Distribution of Information:
The Government should provide monetary or other assistances for citizen\’s voluntary activities to enhance the production and distribution of information related to public interests
2. Access to Public Information:
The word "public information" includes national or local government\’s information; private companies\’information related to scientific research, medical treatment, education, legal systems or other public interests; essential computer software and the like. Access to the public information should not be restricted byIPRs. Further, everyone should be entitled to access to the public information through universally accessible network.
3. Balance between Freedom of Expression and Intellectual Property Rights (IPRs):
The freedom of expression should not be restricted by copyrights. Use of works for political expressions and parody, etc. should not be considered as infringement upon copyrights.
4. Balance between Privacy and IPRs:
Automatic transmission of IP address, monitoring activities of users by online service providers, inspection to private information such as mail box, and the like could not be justified for protection of IPRs.
[Copyright]
1. Fair Use (or Free Use) of Works
In the Copyright Act, the scope of fair use tends to be narrower. However, the narrower scope of fair use of works makes the information divide more severe. Use of works, if it is non-profitable, for examples, for purpose of education, research, criticism and the like, should not be restricted by IPRs.
2. Copying and Transmission of MP3 file on Internet
An appeals court ruled on January 12, 2005 that exchanging mp3 files using peer-to-peer software violates copyright laws. The Seoul Central District Court found three users of \’Soribada\’, Korea\’s biggest peer-to-peer network system (http://www.soribada.com), guilty of violating copyright laws for exchanging music files.
IPLeft announced its opposition to the judgment. The sharing of MP3 files through Soribada is a non-profit and private reproduction of works, which should be allowed under Article 27 of the Copyright Act, although the file sharing takes place on the Internet. If copyright laws are applied equally to the Internet as in the offline world, they will infringe upon the right to access digital information as well as strengthen the power of corporations.
3. Disputes about MP3 Mobile Phone
In May 2004, the Ministry of Information and Communication and the Ministry of Culture and Tourism tried to constrain the use of MP3 files on MP3 phones (a mobile phone having MP3 playing function) by lowering the quality of sound or restricting period of time of playing, in order to prevent infringement upon copyrights and phonogram producers\’ rights.
IPLeft opposed the proposal because such stringent measures potentially places a tremendous burden on the user, which in turn violates the users\’ fair rights.
4. Digital Library
2003 Copyright Act prohibits access from outside the library as well as data transmission between libraries and limits the maximum number of people who can simultaneously access online materials.
IPLeft position is:
Libraries play a key role in public access to knowledge across and despite social, political, and regional differences. They help narrow the gap between the information "haves" and "have-nots." Copyright protection is thus restricted in the case of libraries by Article 28 of the copyright law.
IpLeft proposes new ideas for the revision of Article 28. ? No license should be required to distribute non-profit and academic materials. ? People should not be charged for fair use of libraries. ? benefit principle (this principle means that if anyone who receives some sort of benefit, he or she should pay for it) should not be applied to digital libraries.
5. Transmission Right Given to Performers And Phonogram Producers
The Copyright Act amended last year, which became effective in Jan. 2005, confers a transmission right to performers and phonogram producers. The Copyright Act had granted the right to transmit only to copyright holders since 2000.
Korean Netizens began to realizehow the Copyright Act strongly restricts their activities. They are voluntarily making online discussion communities (so-called "Cafe") and campaigning against the Copyright Act. Citizen groups altogether with Netizen plan to release statements and to carry several campaigns on-line and off-line.
6. Protection of Database Having no Originality
The Copyright Act was amended in 2003 so as to add Articles 73bis to 73nona that protects database having no originality. According to Article 73tetr, Producers of databases has rights of reproduction, distribution, broadcasting or transmission the databases.
IPLeft criticizes that the revision of the Copyright Act violates Articles 22(2) of the Constitution that requireoriginality as a ground for protection by copyright laws, and distorts the original purpose of copyright law as an investment guarantee rather than as means to make returns on creative activities.
7. Technological Measures for Protecting Copyright
Technological measures by copyright holders, performers or producers of phonograms in connection with the exercise of their rightsshould be removed after termination of their rights. Further, the measures should not prevent the fair use of works.
8. Obligations of Online Service Providers(OSPs)
No one, including OSPs, should be forced to be responsible for the copyright infringement of a third person. Monitoring obligation to prevent infringement of copyrights, if burdened with OSPs, may cause infringement upon privacy of users.
[Patent]
1. BM Patent
The KIPO has a policy to promote BM patent applications and issue such patents without strict examination.
IPLeft opposes BM patent because the patent for Internet Business Model can monopolize the idea itself, so, it will disturb the development of Internet Society. In 2000, IPLeft and Korean Progressive Network \’JinboNet\’made an action of nullity against the Samsung Electronic Co.\’s patent, \’Remote education via an internet\’ and won in the suit.
2. Compulsory License
To achieve public policy goals, national governments should be able to more freely grant a compulsory license to patent rights.
(1) Request for Authorization of Compulsory License
In 2001, several health citizen groups requested the KIPO to adjudicate for the authorization of a compulsory licenseto the Gleevec(leukemia drug by Novartis) patent. In the response, the KIPO rejected the request on the ground that it is not considered that there are the interests of the public to work the patented invention.
(2) Implementation of 2003/8/30 Decision
A bill was filed November 26, 2004 to the Korean National Assembly, which aims at implementing the WTO General Council Decision of 30 August 2003 on the implementation of Paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health (WT/L/540 of 2 September 2003).
IPLeft had prepared the draft billtogether with lawmakers and are pushing the National Assembly to pass the bill. However, the bill must overcome obstacles, such as KIPO\’s oppositionand lobbies by multinational pharmaceutical companies.Some responsible officials in the KIPO argued that we have to wait until the Article 31 of TRIPsis finally revised by reflecting the WTO Decision of 30 August 2003.
3. Biotechnology and Patent
TheKorean Patent Act allows patenting of natural or engineered microorganisms, transgenic plants and animals, as well as a part of human body, such as genes, proteins and organs.
Natural materials such as microorganisms and genes, even if separated and isolated from their original circumstances, should not be patented because they are not "invention" but "discovery."
With regard to transgenic organisms, effective systems to examine their effects on the ecosystem and ethics problems should be established.
[Variety Protection]
Farmer\’s Rights of seed-harvesting, seed-storing and seeding, which have been recognized by FAO, should not be restricted by patent rights on plant and plant seed.
[Internet Domain Name]
Internet Address Resource Management Act was enacted in 2003 to manage the registration of domain names and dispute settlement surrounding domain names. Domain name owner\’s right should be respected at least to the same extent as trademark rights.
IPLeft (http://www.ipleft.or.kr)
IPLeft is a social group for information commons in South Korea. It was founded in 1999. IPLeft has concerned about the social and digital divide and criticized the strengthening of intellectual property rights(IPRs) [or limited intellectual monopolies] regime and has researched alternative policies against existing IPR.IPLeft believes that IPR should not deter the free and balanced flow of ideas and innovations and the cultural basis of information commons should be socially wide-spread for the real innovation and creation.
IPLeft Launching Korean Open Access License
(http://www.freeuse.or.kr)
- Cultural movement for sharing creative works -
IPLeft launched Korean Open Access License (KOAL) in October, 2004.It is an information open access model newly introduced in South Korea.
As the information and communication technologies (ICTs) are being developed and the broadband infrastructure is becoming more widespread, it is a common expectation that people would have easier access to information. Nevertheless, the benefit of getting convenient access to information and saving expenditure on information use do not seem to be available as expected. One example is that in South Korea, in spite of the huge broadband infrastructure, there is only very limited access available to the digital library. It is due to the restrictions imposed by the existing copyright regime.
Current Copyright Act automatically grants several rights such as reproduction right, distribution right, display right and so on to authors for their works. Grant of such rights is made as soon as any production activity gets completed regardless of author\’s will.However, authors have diverse opinions regarding the copyright they get granted. Some people would like to express \’all rights reserved\’, but others are likely to express \’some rights reserved\’. Some people don\’t even mind their rights at all, and hope to make their works available to the public without any restrictions of copyright. This may imply that the copyright regime should be able to embrace different needs and protections required of copyright owners.
In this context, IPLeft has conducted a research regarding many different types of open access models and finally developed KOAL. It is a kind of social contract between authors and users. By using KOAL model, an author can set the level of access to and use of his/her work he/she wishes to allow users to have and marks a KOAL logo accordingly. People can use the work according to the author\’s mark of KOAL. Setting the level of restrictions under KOAL does not mean that authors give up their copyrights but mean that they permit users to use their work only on certain condition.KOAL can be used on various types of work such as software, academic works, educational material, digital contents and media.
KOAL has four options with below followings.
1) OK on commercial use and derivative work
2) OK on non-commercial use and derivative work
3) OK on commercial use and No on derivative work
4) OK on non-commercial use and No on derivative work
KOAL will become a cultural basis which encourages free use of information. Fundamentally, it can contribute to the improvement and development of creative culture in the society.
Summary of KOAL
1. Korean Open Access License: Commercial-Derivative works
All users who have commercial or non-commercial purposes are free
- to reproduce, perform, broadcast, communicate to the public, exhibit, and distribute the work and
-to make derivative works to make compilation and compilation works.
Only on conditions that users must observe author\’s moral rights such as indicating original authorship credit make this license appear on works used under the terms of this license.
Any termination of this license shall not affect user\’s rights that current Copyright Act of Korea and relative laws guarantee.
2. Korean Open Access License: Commercial-No derivative works
All users who have commercial or non-commercial purposes are free
- to reproduce, perform, broadcast, communicate to the public, exhibit, and distribute the work and
- to make compilation and compilation works.
Only on conditions that users must
- observe author\’s moral rights such as indicating original authorship credit and
- make this license appear on works used under the terms of this license.
Any termination of this license shall not affect user\’s rights that current Copyright Act of Korea and relative laws guarantee.
3. Korean Open Access License: Non-commercial-Derivative works
All users who have non-commercial purposes are free
- to reproduce, perform, broadcast, communicate to the public, exhibit, and distribute the work
- to make derivative works and
- to make compilation and compilation works.
Only on conditions that users must
- observe author\’s moral rights such as indicating original authorship credit; and
- make this license appear on works used under the terms of this license.
Any termination of this license shall not affect user\’s rights that current Copyright Act of Korea and relative laws guarantee.
4. Korean Open Access License: Non-commercial-No derivative works
All users who have non-commercial purposes are free
- to reproduce, perform, broadcast, communicate to the public, exhibit, and distribute the work; and
- to make compilation and compilation works.
Only on conditions that users must
- observe author\’s moral rights such as indicating original authorship credit; and
- make this license appear on works used under the terms of this license.
Any termination of this license shall not affect user\’s rights that current Copyright Act of Korea and relative laws guarantee.
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