A balance between flexibility and certainty in fair use : analysis of the compatibility of US fair use and Canadian fair dealing with Korean copyright law
department or school: Law, Peter A. Allard School of
data provider: DSpace
degree campus: UBCV
creator: Kim, Hyojung
issued: 2023-07-17T22:04:48Z
issued: 2023
related degree: Master of Laws - LLM
degree grantor: University of British Columbia
description: In 2011, the Korean fair use provision, based on US fair use model, was introduced into the Korean copyright system. Since its adoption in the Korean Copyright Act, however, it has not been significantly relied upon by the courts of Korea. This thesis takes the position that strong and robust fair use is necessary in order to fulfill the purpose of Korean copyright law, which is to progress culture by protecting copyright and promoting the fair use of copyright works. Fair use could serve as a tool to attain a balance between these interests. Furthermore, fair use is particularly important in the digital era to ensure the copyright system can adapt to rapid technological changes. Given this standpoint, the aim of this thesis is threefold: First, to identify the US fair use’s incompatibility with Korean copyright law as a problem of Korean fair use. Second, to explore whether another model – mainly Canada’s fair dealing defense – may be more compatible with Korean copyright law. Lastly, to provide suggestions for increasing the widespread use of fair use in Korea by enhancing legal certainty and ensuring appropriate flexibility. These suggestions will cover the revision of the legislation, the role of the Courts, and legal experts, highlighting the significant role of fair use doctrine. To this end, this thesis will rely on the legal transplant theory. First, the process of legal transplant of US fair use into Korean copyright law will be assessed from the perspective of legal transplant theory. The thesis will argue that the failure to account for the necessary considerations during the transplantation of US fair use has resulted in a lack of balance between certainty and flexibility in Korean fair use. Second, the thesis will analyze the cultural and historical context of Canadian fair dealing to examine its compatibility with Korean copyright law. Lastly, this thesis will offer recommendations for Korean fair use in the context of successful legal transplant.
aggregated CHO: https://circle.library.ubc.ca/rest/handle/2429/85256
note: A BALANCE BETWEEN FLEXIBILITY AND CERTAINTY IN FAIR USE: ANALYSIS OF THE COMPATIBILITY OF US FAIR USE AND CANADIAN FAIR DEALING WITH KOREAN COPYRIGHT LAW by HYOJUNG KIM A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) JULY 2023 © Hyojung Kim, 2023 ii The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the thesis entitled: A Balance Between Flexibility and Certainty in Fair Use: Analysis of the Compatibility of US Fair Use and Canadian Fair Dealing with Korean Copyright Law submitted by Hyojung Kim in partial fulfilment of the requirements for the degree of Master of Laws in Law Examining Committee: Graham J. Reynolds, Associate Professor, Law, UBC Supervisor Jon Festinger, Adjunct Professor, Law, UBC Supervisory Committee Member iii Abstract In 2011, the Korean fair use provision, based on US fair use model, was introduced into the Korean copyright system. Since its adoption in the Korean Copyright Act, however, it has not been significantly relied upon by the courts of Korea. This thesis takes the position that strong and robust fair use is necessary in order to fulfill the purpose of Korean copyright law, which is to progress culture by protecting copyright and promoting the fair use of copyright works. Fair use could serve as a tool to attain a balance between these interests. Furthermore, fair use is particularly important in the digital era to ensure the copyright system can adapt to rapid technological changes. Given this standpoint, the aim of this thesis is threefold: First, to identify the US fair use’s incompatibility with Korean copyright law as a problem of Korean fair use. Second, to explore whether another model – mainly Canada’s fair dealing defense – could be more compatible with Korean copyright law. Lastly, to provide sugg…
has type: Thesis/Dissertation
date issued: 2023-11
is shown at: 10.14288/1.0434221
language: eng
degree discipline: Law
provider: Vancouver : University of British Columbia Library
publisher: University of British Columbia
rights: Attribution-NonCommercial-NoDerivatives 4.0 International
rights URI: http://creativecommons.org/licenses/by-nc-nd/4.0/
scholar level: Graduate
contributor: Reynolds, Graham, 1981-
type: Text
identifier URI: http://hdl.handle.net/2429/85256