Fair Use for Small Users Exploited by Big Tech in the Name of Public Interest
Copyright Law Alone Is Not Enough
Urgent Need for Interdisciplinary Discussion and Social Consensus
Professor Nam Hyung-doo of Yonsei University Law School recently focused on this issue in his newly published book, The Paradox of Fair Use - The Giant on the Seesaw, Restoring Balance (published by Gyeongin Munhwasa). He explained the background of writing the book by stating, “Fair use was originally a system to balance the right to access information and the rights of creators, but now it is being misused as a ‘liability exemption logic’ for platform companies to avoid responsibility.”
In this book, his first monograph in 10 years since On Plagiarism (published by Hyunamsa, 2015), Professor Nam dealt with the lawsuit between Oracle and Google as the clearest example of the ‘paradox of fair use.’ The legal battle lasted about 11 years from 2010 over Google’s unauthorized use of Oracle’s Java API code. Although the appellate court ruled in favor of Oracle, finding copyright infringement, the U.S. Supreme Court in April 2021 recognized it as fair use, stating it contributed to the public interest, ultimately siding with Google.
Professor Nam evaluated this ruling as “the result of a small door for small users being utilized by a giant user.” He pointed out the paradoxical situation where an exception clause meant for the weak has instead become a tool for platform companies.
The problem is that such precedents are not confined to the United States. Professor Nam raised the issue of judicial sovereignty, saying, “In an era where the concept of ‘public interest’ defined by U.S. courts has a substantial impact on the global content environment.” For example, under YouTube’s terms of service, users accept the federal and state courts of Santa Clara County, California, as the jurisdictional courts. This structure makes it difficult to file lawsuits in Korean courts even if disputes arise between Koreans on YouTube. In effect, the right to a trial is being taken away.
This structure also leads to issues with ‘Text and Data Mining (TDM)’ in the AI learning process. AI learns by collecting massive amounts of content such as academic papers, news, websites, and images. In most cases, copyrighted works are used without the consent of the copyright holders. Some countries, including Japan and the United Kingdom, have exemption clauses for TDM. Professor Nam expressed concern, saying, “Ultimately, the trend is moving toward ‘fair use if it is for AI learning purposes,’” and “In Korea, TDM could be used in a way that undermines copyright.” The Korean government attempted to introduce a TDM exemption clause by amending the Copyright Act in 2021, but the bill was discarded as the 21st National Assembly’s term ended.
With the recent passage of the ‘AI Basic Act,’ discussions on the AI copyright system have reignited. Professor Nam compared the current AI and platform ecosystem to a ‘seesaw between content producers and consumers.’ He said, “It does not mean that all data collection by AI is bad,” but added, “The problem is that big tech platforms are effectively using works and other data free of charge through fair use.” He also noted, “Platforms appear to be doing charity by providing free services to users, but in the process, they earn enormous advertising revenue, causing significant harm to creators, and both creators and users are being tamed by the platform ecosystem.” He previously elaborated on this in a fable format in a contribution to the Legal Newspaper, likening it to a rancher and a corn farmer.
Professor Nam stated, “Discussions on fair use and TDM exemptions ultimately lead to issues of information structure, data sovereignty, and creators’ rights in the AI era,” and “This is a problem that cannot be solved by copyright law alone.” He urged, “An integrated approach encompassing the Personal Information Protection Act, Fair Trade Act, Labor Law, Tax Law, and even philosophy is necessary,” and called for “urgent interdisciplinary discussions and social consensus.”
He emphasized, “Fair use was originally a system for the weak and is still necessary today,” and “We must continuously examine how to operate this system and at what point and who benefits from it.”
Reporter Jo Han-ju, Legal Newspaper
※This article is based on content supplied by Law Times.
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