Copyright Disputes and Interpretation through Case Studies] Commercial Use of “KOGL (Public Works)” Beyond the Permitted Scope is Subject to Corrective Recommendation

By Attorney Park Hyunju, Deliberation Department, Korea Copyright Protection Agency

※ Pursuant to Article 133-3 of the Copyright Act, the Korea Copyright Protection Agency (KCOPA) recommends that online service providers remove or suspend the transmission of illegal copies and issue warnings to the publisher, following the review by the Copyright Protection Review Committee. This enables online service providers to promptly curb the spread of illegal copies and prevent disputes by proactively informing internet users about potential copyright violations in advance. 

Kim Sangdo (assumed name) has arrived at public institution A to supply a high-performance hearing aid that he had invented. Public institution A produced and uploaded a video on its YouTube channel providing instructions to the hearing impaired on how to use hearing aids, and used Kim’s hearing aid. The video was labeled “KOGL type 4.” To highlight the public institution’s recognition of the hearing aid's performance, Kim embedded the video link¹⁾  in his hearing aid sales post with the caption, “High-performance hearing aid also used by public institution A.” Shortly thereafter, Kim received a request from the institution to stop using the video, stating that it had not granted him permission to use it. Kim asked, “Is there anything wrong with me using a video about my hearing aid, especially one that was produced by a public institution?”

The Korea Open Government License (KOGL) permits free use of public works under attribution, non-commercial use, and non-modification. It allows anyone to use public works without individual permission, provided they comply with the stated terms of use. Public works covered by KOGL can be used freely without separate permission; however, the scope of permission is limited to four categories. Any use outside the scope of the terms of use is considered a failure to obtain KOGL permission and may constitute copyright infringement unless a separate permission is obtained.

A video produced by public institution A falls under KOGL Type 4. Kim is using the video beyond the Type 4 scope, which clearly states that “commercial use is prohibited.” Since the institution informed Kim that they did not grant him permission to use the video (for such use) and asked him not to use it, his actions constitute copyright infringement by an unauthorized user, thus exceeding the scope of permission for use of the public work.

Types and Scope of KOGL Use Permission - Type of Use Permission, Display Mark, Scope of Use 내용이 포함되어 있는 표

Types and Scope of KOGL Use Permission
Type of Use Permission	Display Mark	Scope of Use
[Type 1] Citation of Source		- Citation of source - Commercial and non-commercial use - Derivative works, including modifications
[Type 2] Type 1 + No Commercial Use		- Citation of source - Non-commercial use only - Derivative works, including modifications
[Type 3] Type 1 + No Modification		- Citation of source - Commercial and non-commercial use - No derivative works, including modifications
[Type 4] Type 1 + No Commercial Use + No Modification		- Citation of source - Non-commercial use only – No derivative works, including modifications

The post under review contains an embedded link, and case law generally holds that embedded links, such as simple links, must demonstrate commercial purpose and continuity to constitute aiding and abetting copyright infringement.²⁾³⁾ For this reason, considering embedded links as simple links, it may be difficult to conclude that Kim’s one-time use constituted copying, transmission, or aiding and abetting copyright infringement.

However, given that the institution, the rights holder, has stated that it never authorized the use of the video in the manner described by Kim, that its permission to use the video is limited to the YouTube platform, and that uses clearly outside that scope may warrant a different assessment, embedded linking in this case appears to exceed the rights holder's permission and could thus constitute copyright infringement, including the right to public transmission.⁴⁾

The Copyright Protection Review Committee recently decided to issue a warning pursuant to Article 133-3, Paragraph 1, Subparagraph 1 of the Copyright Act and to issue a corrective recommendation for the deletion and suspension of transmission pursuant to Subparagraph 2, taking into account the fact that the subject post uses the work beyond the permitted scope of use for public works and that the copyright holder actively responded to the copyright infringement but did not receive any relief, thus inevitably reporting it to KCOPA, regardless of whether the original intent of the corrective recommendation to prevent damage from the rapid dissemination of illegal copies is in line with the cited case.

 

1) A link in which the linked target information (video) is automatically played when the user accesses the webpage containing the linked information without having to click the link to call up the linked target information.
2) Regarding a case in which Party A posted a broadcast program to an overseas video sharing site without the permission of the copyright holder (e.g., broadcaster, etc.) and provided users with an embedded link to view the program for free, the High Court ruled that Party A constituted aiding and abetting infringement of the right to public transmission. The High Court reasoned that Party A's linking activity cannot be viewed as identical to the publisher’s posting of a broadcast program to an overseas video sharing site (hereinafter, “uploading activity”); the overseas video sharing site publisher who uploaded the program had actual control over the transmission activity on the overseas video sharing site; and the link posted by Party A merely pointed to the web location information or path of the broadcast program copy posted on the overseas video sharing site. Therefore, the court ruled that Party A constituted aiding and abetting infringement of the right to public transmission. (Seoul High Court Decision 2016NA2087313, rendered on March 30, 2017. This precedent is regarded as influential for later Supreme Court rulings, including the en banc decision 2017DO19025, rendered on September 9, 2021.) In other words, the precedent treats embedded links, even those that directly display the playback screen, as links distinct from direct transmission of a video copy. 
3) “If the linker, while fully aware that the perpetrator is infringing on the right to public transmission, engages in linking activities to such infringing posts, including providing links to infringing posts on a website with links to copyright-infringing material, by profitably and continuously posting links to such infringing posts on an internet site, thereby allowing the public to easily access the infringing posts at a time and place of their own choosing, the perpetrator facilitates the crime of providing the infringing posts to the public, and thus constitutes an accessory to infringement of the right to public transmission.” Supreme Court Decision 2017DO19025, En banc, September 9, 2021.
4) Regarding the view that embedded links should be recognized as illegal, given their effect of “displaying” illegal copies, see Seol Jihye, “Legal Analysis of the Potential Copyright Infringement of Embedded Links – Commentary on Existing Case Law, etc.,” [Copyright Protection Review System and Trends] No. 2 (June 2025).