Korean documentary filmmakers can employ fair use in the same way American filmmakers can. In 2011, the Republic of Korea adopted fair use, using word-for-word language from the U.S. doctrine, following a free trade agreement with the U.S. Fair use is the right to use copyrighted material without permission or payment under some circumstances, The doctrine of fair use addressed some of the concerns of Korean producers about how to honor Korean copyright law, given the adoption of more expanded copyright protections in the free trade agreement. Korean copyright law builds balance between existing and new creators into the policy, toward the goal of “the improvement and development of cultural and related industries.”
Fair Use Resources
US Documentary Filmmakers Statement of Best Practices in Fair Use
Fair use is a broad, flexible exception to copyright monopoly privileges, but applying it can raise questions, precisely because it does not offer specifics. Korean documentarians may find helpful the best-practices statement created by U.S. documentarians for the same doctrine. This statement helped to change industry practice, from not employing fair use to employing fair use routinely. It is provided here in Korean.
Report of Documentarians’ Copyright Practices and Self-Censorship
This study, conducted by Lee Changmin, Park Moonchil and Patricia Aufderheide, results from a national survey of 185 Korean documentary filmmakers and interviews with 30 of them. It shows that documentary filmmakers in Korea are self-censoring, and so producing lower-quality and less work that can be seen by the Korean public, because they do not take advantage of existing laws, including fair use. Here is the Korean version, and here is the English version.
Docking Article on Korean Documentarians, Copyright and Fair Use
The Korean magazine Docking, dedicated to documentary film, published a two-part series about the study of Korean documentary and copyright in September 2024.
How US Documentary Filmmakers Created Their Best-Practice Statement on Fair Use
This article, in Korean, and also in English, explains how the US filmmakers created their best-practices code and why it has been so persuasive to industry actors.
Legal study of options for Korean Fair Use
Korean judge Kim Hyojung conducted an extensive analysis of both U.S. fair use and Canadian fair dealing as examples relevant to the challenge of understanding and applying fair use in Korean law. Her scholarship is available here. She notes, among other things, that U.S.-style fair use, the kind that Korea has, can be difficult to apply because it lacks specifics, and she notes (pp. 110-11):
Legal experts also could improve Korean fair use by actively participating in the development of Korean fair use best practices across various sectors. In the US, for example, there are existing best practice guidelines for groups of creators who typically reuse parts of existing works in developing new ones. These guidelines contribute to creating a sense of predictability regarding the scope of fair use. Similarly, when US fair use was codified, guidelines specifically tailored to the education sector were suggested to address the need for certainty among teachers.” (For the citations in the original, consult the full text)
Contact
For questions in English: Patricia Aufderheide, [email protected]
For questions in Korean:
이창민, [email protected]
박문칠, [email protected]