Stop KORUS FTA ! Poisonous articles on Intellectual Property chapter
Stop KORUS FTA ! Poisonous articles on Intellectual Property chapter
1. Shutting down Internet sites that permit the unauthorized reproduction, distribution, or transmission of copyright works, is it declaring surrender to the pressure from the U.S.?
2. Strengthening enforcement on Intellectual Property Rights, are they trying to damage the order of constitution and make the government and the judicial division slaves of the right-holders?
3. The Korea-US FTA Intellectual Property chapter failed to reflect the principle of the intellectual property being the balance between right-holders and users and failed to establish an independent and democratic intellectual property policy.
After the full text of the Korea-US FTA became public, unreleased poisonous articles are getting revealed. We find that they include many articles that the government did not open to public right after the agreement was made even in relation to the intellectual property chapter. It is hard to believe that the intellectual property agreement process was to accept requests from the U.S. unilaterally and the side letter even includes several obligations only for South Korea. It is nothing but a surrender declaration to pressure from the U.S.
Also the agreement includes that not only strengthening higher level of legal protection than international standards and other FTA the U.S. made with other countries already but also allowing excessive executive and legal measures to be used to protect the right. Furthermore, Korea-US FTA allows overruling rights against Korean constitutions and legal policies.
Although the principle of Intellectual Property regime is the balance between the protection of rights and the use hence the government and the judicial division should try to establish this balance as public sectors, this agreement makes them as slaves for the right-holder and multi-national entertainment company as well. Are the right-holders really untouchable beings whom even the public sectors have to serve? It is inappropriate to utilize the administrative power and tax in biased way for the benefit of one party even when the disputes over intellectual property are basically disputes between private sectors and there are administrative and legal procedures to protect rights in place already. However, the agreement does not give any considerations over protections or rights of the users, that is to say, “fair use” which are being threatened.
The poisonous articles revealed after the text of agreement became public are below.
Shutting down internet sites
First, according to the side letter 3 of the chapter 18 (Intellectual Property Rights) of the agreement, it requires to shut down websites that allow unauthorized copying and distribution. They would be not only the ones which encourage activities that violate copyrights but also the ones that enable any copying and transmissions of unauthorized copyrighted materials that are all portals and internet sites. Web-hard services and PSP are specially pointed targets for such drastic measures. There is no such measures required by Copyright act or international agreements that shut down the whole website even if there are activities violate copyright within the website. It is considered appropriate for the website owner to delete unauthorized copyrighted materials or take actions to prevent unauthorized copying and transferring from happening.
Another big issue is that this side letter requirement is not a co-obligation between Korea and the U.S. but it is only applicable to Korea. It also contains that Korean government’s willingness to form an investigation team to perform control activities and take legal actions as early as possible within 6 months from the agreement effectuation.
A representative from Ministry of Culture and Tourism in South Korea defended that the agreement only has a ‘declaratory meaning’, however it only shows the government’s ignorance towards this issue. Although the government wishes to treat it as a ‘declaratory meaning’, it does not stop the agreement from being used as a basis for excessive control over the internet websites. It should be considered as a significant mistake of those who negotiated the agreement to document such a dangerous policy which will threaten the domestic internet businesses. Assigning merely a ‘declaratory meaning’ is just a lame excuse.
Strengthening enforcement activities on book copying around university campuses
Second, the agreement requires the administrative division to perform excessive control activities in order to protect rights as well as strengthening the government’s control over the internet. The side letter 2 contains rules regarding strengthening controls over illegal copying and distributions in universities, but this is not in any FTAs which the U.S. signed with other countries and this only contains concessions to South Korea. If the government increases controls over the internet and activities in universities without any requests from copyright owners, it would only result in wastes of administrative power in a biased way for the right-holders and it would also discourage fair use of copyrighted material for research and development of learning.
Criminal action on trying activities to film movies in cinemas
Third, Article 18.10 (29) allows a criminal action against filming activities or trying to film movies using video cameras in cinemas. It is an excessive control to monitor movie-goers behaviors in order to protect rights. This rule also is not contained any other US FTAs. Now, movie-goers should be careful not to possess a video camera (or mobile phone with a filming function) when they go movies since it can be considered as a filming activity and charged with a criminal action even if you are just having a video camera in possession. This type of measure is directly contradicting the objectives of the constitution which is trying to punish any illegal commercial activities and a noticeable violation of the principle of the separation of three powers as it is directly opposite to the legislative power and the Supreme Court’s decision regarding unproven criminals.
Fourth, although there are administrative and judicial systems to protect the rights in place, Article 18.10 adds many other enforcement regulations as a means to protect rights without sufficient discussions domestically. These regulations are unfairly in favor of the right-holders, so called plaintiffs (civil cases) or prosecutors (criminal cases). In these cases, a burden of losing a lawsuit for defendants will become heavier regardless of the facts whether the right-holders do have rights or there were even a violation of rights.
Article 18.10 (3) contains a regulation that assumes the existence of rights to copyright and related rights. The current litigation procedure requires the plaintiff to prove the existence of his/her right. However, if such regulation becomes enacted, the defendant needs to prove non-existence of the right hence there is a higher chance that the defendant might lose the case. Besides, there is a regulation that assumes the existence of rights such as copyrights and validity of trademark for criminal case procedures. Such unfair regulation clearly violates the principle of assuming innocence until proven guilty in the constitution which requires the prosecutors to be responsible for producing evidences.
It is unsure if we need Article 18.10 (6), Court compensation for damage system as we have a regulation which allows a court to order a considerable amount of compensation given the purport of the case. Also it does not suit our legal system as we are a country following Continental law. Sudden introduction of legal systems of Anglo-American Law which are not suitable for our current legal systems makes us question if we do have the right to legislative independence.
Unilateral provisional measure procedures (Article 18.10 (17)) which allows the court to make a provisional measure order only with a request from the right-holder without hearing the other party is a system that excessively favors the right-holders without protecting the other party’s right to hearing.
Fifth, Korea-US FTA Intellectual Property right agreement directly damages the separation of powers which our constitution guarantees. For example, Article 18.10 (27) (Enforcement of Intellectual Property laws) sets that “penalties that include sentences of imprisonment as well as monetary fines sufficient
to provide a deterrent to future infringements”. This is a situation where Korea-US FTA interrupts the parliament’s, as a lawmaking body, ability to set its own legislation and sets the level of punishments. This is firstly an interruption to parliament’s ability to legislate and secondly a destruction of ability to assess cases which belongs to the judicial division.
Although the government calls such measures as ‘an advancement to Intellectual Property systems” as an excuse, it is nothing but merely accepting the U.S. legal systems. Moreover, it is questionable whether it is necessary to take such measures to enforce intellectual property laws and they are not suitable to domestic judicial systems. Even if there were measures that we should take on board, this should be decided after sufficient amount of consideration is given to our current judicial systems and the national necessity.
Controlling rights on access to information and knowledge
The right-holders who are treated as if they are descendants of God with administrative and judicial supports are given a new right, that is ‘the right to access’ to copyrighted materials by Korea-US FTA. The copyright act does not give the exclusive access right (right to watch, right to read) to copyrighted materials even to the creators. That is, when we read a book or listen to music we do not ask for permission from the copyright holder. However, Korea-US FTA are finally allowing the copyright holders an additional exclusive right, ‘right to access’. (Of course, this is commonly included in most FTAs the U.S. made with other countries.) This became possible via Article 18.4 (1) – Allowing right to copy for temporary storage and Article 18.4 (7) – Introduction of technical protection measure to control access. ‘Temporary storage’ is an unavoidable activity in order to ‘access’ copyrighted materials by using a computer and the internet. Allowing right to copy means that you need to get permission from right-holders to access copyrighted materials. Introduction of technical protection measure to control also allows the right holders ‘a right to control accesses. This is because a simple detour of the technical protection measures would be considered as a violation to rights ‘access’.
We re-confirm from the agreement became public that this Korea-US FTA Intellectual Property agreement is a humiliating agreement which South Korea one-sidedly accepts the U.S. requests. We argue that it is a failed agreement in regards to the aspects of national interests between Korea and the U.S., the principle of Intellectual Property being the balance between the right-holders and the users and the establishment of democratic and independent Intellectual Property system.
May, 28th, 2007
Korean Alliance against the KorUS FTA
Korean Civil Society Coalition against KORUS FTA on Intellectual Property Rights
Korean Democratic Labor Party