The Limits of Educational Use: The Realities of Fair Use in Copyright Law as Learned from Recent Supreme Court Cases 🧑‍⚖️📚

Hello, I’m Heebong Ha, an attorney at Lawpid Legal Services. Today, we’re going to take an in-depth look at the use of copyrighted works for educational purposes and fair use, focusing on a recent Supreme Court judgment. 🔍

Introduction to the issue 📋

Recently, the Supreme Court issued an important ruling on the use of copyrighted works by the Korean Curriculum Evaluation Service (hereinafter referred to as the “Evaluation Service”) (Supreme Court 2021da 272001). The core of the case is as follows:

• The assessment center used literary works and other works in various assessment questions, including the College Ability Test.
• Posted the questions on its website indefinitely after the test was over.
• The question was whether this constituted copyright infringement.

This case raises important questions about the balance of interests between the use of works for educational purposes and copyright protection. 🤔

Relevant Copyright Law Provisions 📜

The key copyright law provisions relevant to this case include:

1. Section 25 (Use for educational purposes, etc.): Regulates the use of works in educational institutions.
2. Article 28 (Citation of published works): Published works may be quoted for reporting, criticism, teaching, research, etc. within the scope of fair use and in accordance with fair practice.
3. Section 32 (Reproduction for Examination Questions, etc.): Regulations on the use of works for examination purposes
4. Section 35.5 (Fair Use of Works): General rule that a work may be used if it does not conflict with the normal way of using the work and does not unduly harm the legitimate interests of the author.

Jurisprudence of existing judgments: Supreme Court Decision 2011 No. 5835, handed down on February 15, 2013 🔍

In a 2013 ruling, the Supreme Court set out the criteria for citing a work in relation to Article 28 of the Copyright Act (Utilization of published works) as follows:

1. The purpose of the citation
2. Nature of the work
3. What is quoted and how much
4. The manner and form in which the quoted work is presented
5. The general notion of the reader
6. Whether it displaces the demand for the original work.

These criteria have been consistently referenced in subsequent rulings 🤝.

How the case has progressed ⚖️

The case went through three court battles, from the first trial to the appeal (2nd trial) and the appeals (3rd trial).

1. 1st Seoul Western District Court (2019 GaHap 38727): Decided that the appraiser’s behavior did not constitute copyright infringement.
2. 2nd Seoul High Court (2020na2045644): Overturned the first court’s ruling and recognized copyright infringement
3. 3rd Supreme Court (2021da272001): Affirmed the judgment on appeal

Arguments of both sides in the appeals 🗣️

Argument of the plaintiff (Korea Literary and Artistic Copyright Association):

• The assessor’s act did not fall under ‘reproduction for test questions, etc.’ (Article 32)
• Does not fulfill the requirement of ‘citation of a published work’ (Article 28)
• Does not constitute ‘fair use of the work’ (Article 35(5))
• Infringes the economic interests of the copyright holder

Defendant’s (assessor’s) argument:

• Use for educational purposes is in the public interest.
• Disclosure of test questions is necessary for the fairness and transparency of the test
• Fair use because only a portion of the work is used
• The impact on the economic interests of the copyright holder was negligible

Court’s judgment ⚡

The Court of Appeal’s reasoning:

The Court of Appeal found that the assessor’s actions constituted copyright infringement for the following reasons.

1. Prolonged posting after the end of the examination did not constitute ‘reproduction for the purpose of examination questions, etc.’ (Article 32). Continued posting after the need to maintain the secrecy of the examination had ceased was beyond the scope of what was justified.
2. It did not constitute ‘fair quotation’ (Article 28) because the work was used as an integral, rather than incidental, part of the examination questions, and it could substantially displace demand for the original work.
3. It also does not constitute “fair use” (Article 35(5)): even if the purpose of the use is legitimate, the method and form of use unfairly harms the interests of the copyright holder and may adversely affect the potential market for the work.
4. The court found that there is a market for the use of the work as a learning material, and that the free provision of the work may reduce this market.

The Supreme Court’s decision 🏛️

While the Supreme Court largely upheld the Court of Appeal’s decision, it made some important legal points.

1. Clarified the scope of Article 32 of the Copyright Act (reproduction for the purpose of examination questions, etc.), ruling that disclosure of examination questions after the end of an examination is permissible only to the limited extent necessary to provide fair marking and grading, subject to a validation process, including appeals against those questions. 🔍
2. Provided more detailed criteria for determining fair use (Article 35(5)), emphasizing that the purpose and nature of the use, the kind and use of the work, the proportion and significance of the portion used, and the impact on the current and potential market must be considered comprehensively, with particular emphasis on the impact on potential market value. 📊
3. It was made clear that the public interest of educational purposes alone cannot justify copyright infringement: there needs to be a balance between the public interest and the interests of the copyright holder. ⚖️
4. Special mention was made of online publication of works, which the court found requires a more cautious approach as it can have a greater impact on the copyright holder’s interests due to its reach and accessibility. 🌐

Implications of the ruling 💡

The ruling has a number of important implications.

1. Care must be taken with the manner and extent of use of copyrighted works, even for educational purposes – unrestricted use of copyrighted works is not permitted simply because it is for educational purposes.
2. Rethink the timing and manner of release of exam questions. Short-term disclosure immediately following an exam may be treated differently than long-term disclosure.
3. The effect on the market for the work is important in determining fair use. Courts have recognized that free provision can chill the relevant market.
4. Even public interest purposes must be balanced against the interests of the copyright holder, reflecting the fundamental purpose of copyright law: to encourage creativity and advance culture.
5. It shows the court’s awareness of copyright issues in the digital age. Recognized the uniqueness of online publishing and set stricter standards accordingly. 💻

Practical advice 🔑

Based on this ruling, we’d like to offer some practical advice.

1. Purpose and nature of the use
2. The type and purpose of the work
3. The proportion and significance of the used portion of the work to the work as a whole
4. The effect on the current or potential market value of the work.
   • Purpose and nature of the use
   • The type and purpose of the work
   • The proportion and significance of the used portion of the work to the work as a whole
   • The effect on the current or potential market value of the work

Closing thoughts 🌟

Copyright law seeks to balance the rights of creators with the public interest. This ruling marks an important milestone in the process of finding that balance, and it will be important for institutions, publishers, and content creators alike to understand and apply its implications.

Do you have a copyright issue? Lawpid Legal Services is here to provide you with expert advice, so don’t hesitate to contact us! 📞✉️