جمهورية كوريا

This is an informal case summary prepared for the purposes of facilitating exchange during the 2025 WIPO IP Judges Forum.

Session 8: Criminal Enforcement

Supreme Court of the Republic of Korea [2021]: Case No. 2017Do19025

Date of judgment: September 9, 2021

Issuing authority: Supreme Court of Korea

Level of the issuing authority: Final Instance

Type of procedure: Judicial (Criminal)

Subject matter: Copyright and Related Rights (Neighboring Rights)

Appellant: Prosecutor

Defendant: Defendant

Keywords: Copyright, Right of public transmission, Replay link site, Hyperlink, Aiding and abetting, Overruling precedent

Basic facts:

·          Charges (Prosecution’s case):
The defendant operated a “replay link site,” generating advertising revenue. Between July and November 2015, they posted about 450 hyperlinks to cinematographic works (movies, dramas, etc.) that had been illegally uploaded by unknown persons onto a foreign video-sharing platform. By doing so, they enabled users to easily access the infringing works, thereby facilitating continuous copyright infringement. Prosecutors charged them with aiding and abetting the infringement of the right of public transmission.

·          First Instance (Seoul Central District Court 2017Godan77):
The trial court acquitted the defendant. It reasoned that hyperlinks merely indicate the location or route of online content and do not directly “facilitate the commission” of copyright infringement. The defendant’s linking activity was seen as taking advantage of an already ongoing infringement, not as aiding and abetting the act itself. The court relied on prior precedent (Supreme Court Decision 2012Do13748), which held that posting links alone cannot constitute aiding and abetting copyright infringement.

·          Appellate Court (Seoul Central District Court 2017No2303):
The lower appellate court upheld the acquittal, echoing the reasoning that links are not active participation in infringement.

·          Appeal to the Supreme Court:
The prosecutor appealed, arguing that the defendant’s systematic and commercial linking activities should be considered aiding and abetting, since they significantly increased access to the infringing works

Held:

·         Issue:
Whether providing hyperlinks on so-called “replay link sites,” which direct the public to infringing works uploaded without authorization of the copyright holder, constitutes aiding and abetting infringement of the right of public transmission.

·          Held: Yes (affirmative).

1. Principle of Public Transmission Infringement

·         When a principal offender uploads an infringing work to an online server and makes it available for access by the public at a time and place of their choosing, the crime of infringing the right of public transmission is completed even without actual simultaneous transmission.

·         If the infringing post remains accessible without being withdrawn, the offender’s unlawful act continues, and thus the infringement can be the subject of aiding and abetting.

2. General Principles of Aiding and Abetting

·         Under Article 32(1) of the Criminal Act, a person who aids another’s crime is punishable as an accessory.

·         Aiding includes conduct that enables, promotes, or facilitates the commission of the crime, or that strengthens or amplifies the harm before the crime has ended.

·         There must be causation: the aiding act must realistically contribute to the realization of the principal offense, such as by increasing opportunities or risks for the crime to occur.

3. Application to Link Sites

·         Recently, numerous “replay” websites and mobile applications have emerged, providing links to unauthorized broadcasts, films, and comics, often for advertising revenue.

·         Although hyperlinks are a neutral technology, the context—such as the commercial purpose, method of posting, and the linking environment—may transform linking into conduct that facilitates copyright infringement.

·         Where an operator, fully aware that works were uploaded without authorization, commercially and continuously posts hyperlinks that allow the public to easily access infringing materials at their chosen time and place, such conduct facilitates the principal offenders’ public transmission infringement and constitutes aiding and abetting.

4. Limits and Safeguards

·         The Court emphasized that not every hyperlink should be treated as aiding copyright infringement, since this could discourage ordinary online information sharing. Restrictions on linking must be applied narrowly and only in clear cases. Because some works may be licensed or qualify as fair use, it is not always obvious whether linked content is illegal.

·         A defendant must therefore clearly recognize that the linked material infringes copyright, and the prosecution must strictly prove such awareness. To establish aiding and abetting, the link must be closely connected to the infringement and must realistically increase the risk or opportunity of the crime.

·         This standard is met when operators of “replay link sites” post infringing links commercially and continuously, making it easy for the public to access unauthorized works at any time and place. By contrast, casual or occasional linking that does not reach this level should not be considered aiding infringement.

5. Overruling of Prior Precedent

·         The Supreme Court expressly overruled its prior decision (Supreme Court Decision 2012Do13748, Mar. 12, 2015), which held that hyperlinking to infringing materials could never amount to aiding and abetting.

·         The Supreme Court reversed the acquittal and remanded the case to the Seoul Central District Court for reconsideration under the new standard.

Relevant holdings in relation to criminal enforcement:

·         Overruled Supreme Court (2012Do13748):

o    The Supreme Court held that an Internet link merely indicates the location or route of a web page or an individual copyrighted work stored on a server. Even if an Internet user can directly access infringing content by clicking such a link, the act of linking itself does not constitute reproduction or transmission under the Copyright Act. In criminal law, aiding and abetting refers to any act, direct or indirect, that facilitates the commission of a crime. However, since linking merely provides location information, it cannot be said to “facilitate” the execution of copyright infringement itself. Thus, the mere act of posting a link does not amount to aiding and abetting another’s infringement of reproduction rights or the right of public transmission. In short, 2012Do13748 established that hyperlinking alone does not constitute reproduction, transmission, or aiding and abetting copyright infringement.

·         Remand court (Seoul Central District Court 2021No2346):

o    The remand court held that the defendant, fully aware of the ongoing infringement of the right of public transmission by unidentified persons, commercially and continuously posted links on the website at issue, which connected to the infringing posts. By doing so, the defendant enabled members of the public to easily access the infringing materials at the time and place of their own choice, thereby facilitating the principal offenders’ crime of making the infringing works available to the public. The remand court thus reversed the prior acquittal and sentenced the defendant to six months in prison, suspended for one year.

Relevant legislation: Article 2 and Article 136 of the Copyright Act of Korea; Article 32(1) of the Criminal Act.