[A2k] Korean Fair Use & the Three Step Test Jaewoo Cho

Manon Ress manon.ress at keionline.org
Mon Mar 25 10:04:09 PDT 2013

Newly Implemented Korean Fair Use and the Three Step Test
Posted by Jaewoo Cho on February 28, 2013


korea-flagThe approach to copyright limitations and exceptions differs
significantly in each country depending on what models they are following.
 Generally speaking, there are three models of limitations and exceptions
to copyright[1]:  1) the U.S. fair use model, 2) the fair dealing model in
most U.K Commonwealth and Continental European countries, and 3) a
combination of the U.S. and European models found in recently amended
Korean Copyright Act.[2]

The U.S. fair use system allows for open-ended lists of permissible use
based on statutory factors[3] that leave the task of identifying each case
of exempted unauthorized use to the courts.  On other hand, the Continental
European countries provide a closed catalog of defined copyright
limitations and exceptions. The newly amended Korean Copyright Act offers
both 1) a closed list of permissible use (as with the European model) and
2) an open-ended consideration based on statutory factors (as with the U.S.

Article 9(2) of the Berne Convention[4], as known as the three-step test,
states that copyright limitations are permissible in “certain special
cases” that “do not conflict with the normal exploitation” and “do not
unreasonably prejudice the legitimate interest of the author.”

There is a debate whether the three-step test is primarily designed to be
restrictive to copyright limitations and exceptions or meant to be open and
flexible.[5] Some scholars argue that a national fair use system did not
qualify as a “certain special cases” as enumerated in the three-step
test.[6]  On the same line of thought, some contend that the three-step
tests limits the freedom of national legislators to legislate with
expectations of economics and social welfare uncertainty, particularly with
the fast-changing dynamics of technological process.[7]

However, the new amendment to the Korean Copyright Act, Article 35-3.1,
states that works not falling into enumerated categories may be used in
cases where “there is no conflict with the normal exploitation of
copyrighted work and does not prejudice the legitimate interest of the
copyright holder.”  The South Korean legislators suggested that this
language provides the general guideline for determining whether a
particular use falls under fair use.[8]  Then Article 35-3.2 provides four
statutory factors to determining whether a particular use is fall in to
this exception, which are almost the same assertion 107 of the U.S.
Copyright Act.

Therefore, this new South Korean copyright registration shows that it is
not impossible to incorporate the three-step test with an open and flexible
fair use clause.  The South Korea fair use provision has clearly provided
an enumerated list of permissible uses with the specific language from the
three-step test, and then also provided flexibility by an open-ended list
of permissible uses based on statutory factors when such uses are not found
in the enumerated categories.  This new South Korean fair use amendment
challenges the theory that the three-step test is primarily designed to
restrict this kind of copyright limitation.

[1] See Seagull Haiyan Song, Revaluating Fair Use in China – A Comparative
Copyright Analysis of Chinese Fair Use Legislation, The U.S. Fair Use
Doctrine, and The European Fair Use Dealing Model, 51 IDEA 453, 454-445.

[2] Article 35-3 (Fair Use of Copyrighted Material):

    Except for situations enumerated in art. 23 to art. 35-2 and in art.
101-3 to 101-5, provided it does not conflict with a normal exploitation of
copyrighted work and does not unreasonably prejudice the legitimate
interest of the copyright holder, the copyrighted work may be used, among
other things, for reporting, criticism, education, and research.
    In determining whether art. 35-3(1) above applies to a use of
copyrighted work, the following factors must be considered: the purpose and
character of the use, including whether such use is of a commercial nature
or is of a nonprofit nature; the type or purpose of the copyrighted work;
the amount and importance of the portion used in relation to the
copyrighted work as a whole; the effect of the use of the copyrighted work
upon the current market or the current value of the copyrighted work or on
the potential market or the potential value of the copyrighted work.

[3] 17 U.S.C. § 107 (2006).

[4] Berne Convention for the Protection of Literary and Artistic Works art.
9(2), available at

[5] Compare Martine Senftleben, Bridging the Difference Between Copyright’s
Legal Traditions – The Emerging EC Fair Use Doctrine, 57 J. Copyrighted
Soc’y U.S.A 521 with Christophe Geiger, Jonathan Griffiths & Reto M. Hilty,
Declaration on a Balanced Interpretation of the “Three-Step Test” in
Copyright Law, 39 IIC 707 (2008).

[6] See supra note 5.

[7] See Geiger, Griffiths & Hilty, supra note 5; see also Guido Westkamp,
The “Three-Step Test” and Copyright Limitations In Europe: European
Copyright Law Between Approximation and National Decision Making, 56 J.
Copyright Soc’y U.S.A 1, 64 (2008).

[8] See an explanation of amended Copyright Act for the implementation of
KOURS FTA (2011), available at

Manon Ress
Knowledge Ecology International
manon.ress at keionline.org
tel.: +1 202 332 2670

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