Corrective Action Recommendations and Fair Use Issues in Cases of Unauthorized Use of Background Music in Self-Created Videos

Written by Park Hyun-joo, Attorney at the Protection Review Department, The Korea Copyright Protection Agency  

Kim Geum-son, a florist, uploaded photos of flowers from her shop to her blog for promotional purposes. The stunning flower images began attracting many visitors to her blog. Inspired by the growing interest, she wanted to share her photos with her blog subscribers by creating a video of the collection of photos, accompanied by beautiful music. Using pictures of chrysanthemums and tulips brought in this fall, she created the video and added her favorite song, "Forgotten Season" by Lee Yong, as background music. However, not long after, Kim Geum-son received a warning email stating that her video constituted infringing content.

Blogs, which allow individuals to freely express their thoughts, often feature a variety of content, including text, photos, and videos. In this process, people may add popular songs as background music to complement their self-created text or images. However, the general rule is that permission must be obtained from the copyright holder to use someone else’s musical works. If audio is copied and used in a video without such permission, it constitutes copyright infringement.

Even so, Kim Geum-son might feel that the warning is somewhat unfair, as it labels the entire video as infringing content, despite the fact that she created the video portion herself. Considering that Kim Geum-son personally created the video segment, is there a way for her to receive legal protection for her original work?

The Copyright Act includes a fair use provision that allows the use of copyrighted works for purposes such as reporting, criticism, education, and research, provided it does not conflict with the normal exploitation of the work or is not unfairly prejudicial to the legitimate interests of the copyright owner. In cases like Kim Geum-son's, it would be worth examining whether her use falls under the fair use provision outlined in Article 35-5 of the Copyright Act¹⁾.

Kim Geum-son's post uses the entire length of the original musical work in the process of conveying the author's thoughts (the proportion and significance of the part used relative to the whole work)²⁾. Most of the content of Kim Geum-son's post was created with the intention of conveying her thoughts, and it cannot be said that the primary purpose is to offer the original work for public use. However, since Kim Geum-son created the post to promote her flower shop, the purpose of its use cannot be considered entirely non-commercial (the purpose and nature of the use of the original work)³⁾. Kim Geum-son’s post is publicly accessible and easily accessible, and since it involves the reproduction and transmission of the entire original work, it can be said to have an impact on its potential market (the impact on the current or potential market or value of the original work). In light of these factors, it seems unlikely that Kim Geum-son's case would fall under fair use. 

However, the Copyright Protection Deliberation Committee, in a similar case, decided not to order the site operator (OSP) to delete or suspend transmission of the post under Article 133-3, Paragraph 1, Subparagraph 2 of the Copyright Act, considering the creativity present in the video. Instead, it issued a corrective recommendation in the form of a warning under Paragraph 1, Subparagraph 1 of the same article aimed at informing the poster about proper copyright compliance. We hope that Kim Geum-son can continue to share her beautiful creations with others freely in the future.

In accordance with Article 133(3) of the Copyright Act, the Korea Copyright Protection Agency recommends that online service providers take corrective measures to delete or suspend the transmission of illegal copies that infringe copyrights, etc., and to warn the person who posted them, to prevent copyright disputes in advance by notifying Internet users who are not familiar with the Copyright Act about whether they have violated the Copyright Act after a review by the Copyright Protection Deliberation Committee. 

1) The legal requirements for fair use under Article 35-5, Paragraph 2, each Subparagraph of the Copyright Act can be summarized in the following four criteria: ①Purpose and nature of use ②Type and use of the work ③The proportion and significance of the used portion within the entire work ④The impact of the use of the work on its current market or value, or potential market or value

2)  Fair use is a concept introduced from Section 107 of the U.S. Copyright Act, and there are more cases in the U.S. regarding this. In the case *Harper & Row Publishers, Inc. v. Nation Enterprises*, 471 U.S. 539 (1985), it was ruled that if a substantial portion of the original work is borrowed, it could be grounds to deny fair use. Therefore, when the entire work is used, the likelihood of it qualifying as fair use is low, unless there are special circumstances.

3) Looking at fair use cases in the United States, it is believed that non-commercial uses, transformative uses that change the purpose of the use, and incidental or accidental uses are more likely to qualify as fair use. (Oh Seung-Jong, Copyright Law, 2020, Parkyoungsa, pp. 885-889)