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COPYRIGHT

INTRODUCTION

COVERAGE – WHAT IS PROTECTED.

Rights of Authors: Works Protected

Under Article 4 - 6 of the Copyright Act, copyright protection is provided to the following:

Article 4 (Examples of Works)

(1) The following shall be the examples of works referred to in this Act:

1. Novels, poems, theses, lectures, recitations, plays and other literary works;

2. Musical works;

3. Theatrical works including dramas, dances, pantomimes, etc.;

4. Paintings, calligraphic works, designs, sculptures, crafts, works of applied art, and other artistic-works;

5. Architectural works including architectural models and plans;

6. Photographic works including photographs and other works produced by similar methods;

7. Cinematographic works;

8. Maps, charts, design drawings, sketches, models and other diagrammatic works;

9. Computer program works;

(2) Matters necessary for the protection of computer program works under Subparagraph 9 of Paragraph (1) shall be provided for in a separate Act ( Computer Programs Protection Act).

Article 5 (Derivative Works)

(1) A creation produced by means of translation, arrangement, alteration, dramatization, cinematization, etc. of an original work (hereinafter referred to as "derivative work") shall be protected as an independent work.

(2) The protection of a derivative work shall not prejudice the rights of the author of the original work.

Article 6 (Compilation Works)

(1) A compilation (including collections of treatises, numerical values, diagrams and other materials which are so systematically composed as to be retrieved by using information processing devices) which are, by reason of selection or arrangement of their contents, of a creative nature (hereinafter referred to as "compilation work") shall be protected as an independent work. (amended by law no. 4717 Jan. 7, 1994)

(2) The protection of a compilation work shall not prejudice the copy rights of the subject matters consitituting such compilation work and other rights protected under this act. (amended on May 27, 2003)

Works Not Protected

Article 7 (Works not Protected, etc.)

No work which falls under any of the following Subparagraphs shall be protected under this Act:

1. Laws, regulations, constitution, treaties, degress, ordinances and rules; (as amended on Jan 12, 2000)

2. Notices, public notifications, directions and others similar to them issued by the state or local public goverment;

3. Judgments, decisions, orders, or rulings of courts, as well as rulings and decisions made by the administrative appeal procedures, or other similar procedures;

4. Compilations or translations of works as referred to in Subparagraphs 1 to 3 which are produced by the state or local public entities; (as amended on Jan 12, 2000)

5. Current news reports which transmit simple facts;

Copyright Holders' Rights

Article 10 (Copyright)

The author shall enjoy the rights prescribed under Articles 11 to 13 (hereinafter referred to as "authors' moral rights") and the rights prescribed under Articles 16 to 22 (hereinafter referred to as "authors' property rights") under the copyright act. The copyright shall commence when works are created regardless of the fulfillment of any procedure or formalities.

Neighboring Rights

Article 64 (Protection of Stage performance, Phonograms, Broadcasting)

Performances, phonograms and broadcasts falling under any of the following subparagraphs shall be protected as neighboring rights under this Act: (Amended by Act #8101, December 28, 2006)

1.Stage performances:

(a) Stage performances conducted by nationals of the Republic of Korea (including juristic persons established under the Acts of the Republic of Korea, and foreign juristic persons maintaining their principal offices in the Republic of Korea; hereinafter the same shall apply);

(b) Stage performances protected under the international treaties to which the Republic of Korea has acceded or which it has ratified;

(c) Stage performances fixed in phonograms as referred to in subparagraph (2); and

(d) Stage Performances transmitted by broadcasts as referred to in subparagraph (3) (except those included in sound or visual recordings before transmission);

2.Phonograms:

(a) Phonograms manufactured by nationals of the Republic of Korea;

(b) Phonograms in which sounds have been fixed for the first time in the Republic of Korea; and

(c) Phonograms in which sounds have been fixed for the first time in a foreign country party to the treaties and protected under such treaties to which the Republic of Korea has acceded or which it has ratified and thus protected under such treaties;

(d) Phonograms which are protected according to treaties which Korea has entered or concluded of which the producer is a national of a treaty signatory (including corporations established according to the laws of said treaty signatory & corporations that have their main office in said treaty signatory).

3. Broadcasts:

(a) Broadcasts made by broadcasting service providers which are nationals of the Republic of Korea;

(b) Broadcasts made from broadcasting facilities located in the Republic of Korea; and

(c) Broadcasts made by broadcastings service provider which are nationals of a foreign country, from broadcasting facilities located a country party to the treaties to which the Republic of Korea has acceded or which it has ratified and thus protected under such treaties.

LEGISLATION

To view the Korean Copyright Act in its entirety, click "here".

COPYRIGHT REGISTRATION

(Information provided by the Copyright Commission for Deliberation and Conciliation - Copyright Registration)

Note:

Any person who files a fraudulent registration shall be punishable by imprisonment for a term of not more than three years, or a fine of no more than thirty million won. (He/She may be punishable by both imprisonment and a fine, under Article 136 of Copyright Act)

For list of major law firms in Korea, click here.

ENFORCEMENT APPROACHES – HOW TO ADDRESS INFRINGEMENT?

Copyright - Enforcement Steps

1) Investigation: A right-holder can initiate an investigation by reporting the infringement to the Ministry of Culture and Tourism or the Copyright Commission for Deliberation and Conciliation. Under the amended Copyright Act, police/prosecutors can initiate enforcement without right-holder's complaints in the case of habitual perpetuation of acts for commercial purposes. Click "here" for a list of IPR protection consulting firms in Korea.

2) Hiring Legal Representation: IPR law firms in Korea can advise you on how to go about enforcing IPR. Click "here" for a list of law firms in Korea.

3) Conciliation: The Copyright Commission for Deliberation and Conciliation offer right-holders a way to settle disputes concerning copyrights at a minimal cost and in a timely manner. The conciliation is conducted out of court but with professional advice. Click "here" for more information on the copyright conciliation process.

4) Court: If no remedy has been reached through conciliation, the Korean Court is the next step. Dissatisfied parties can appeal to the judges in the Korean Supreme Court.

Some useful links.

Korea Customs

Korea Customs

U.S. Customs

U.S. Immigration and Customs Enforcement(ICE)/Department of Homeland Security (DHS)

"STOP!"(Strategy Targeting Organized Piracy) Program

"STOP!"(Strategy Targeting Organized Piracy) Program

U.S. Copyright Office

U.S. Copyright Office

Software Infringement - Enforcement Steps

1) Investigation: A right-holder can initiate an investigation by reporting the infringement to the Ministry of Information and Communication or the Korea Copyright Commission.

2) Hiring Legal Representation: IPR law firms in Korea can advise you on how to go about enforcing IPR. Click "here" for a list of law firms in Korea.

3) Conciliation: The Korea Copyright Commission offer right-holders a way to settle disputes concerning computer program copyrights at a minimal cost and in a timely manner. The conciliation is conducted out of court but with professional advice. Click "here" for more information.

4) Court: If no remedy has been reached through conciliation, the Korean Court is the next step. Dissatisfied parties can appeal to the judges in the Korean Supreme Court.

MARKET ENTRY PLANNING

Protecting U.S. intellectual property should be a primary concern of U.S. firms when planning their market entry strategy into the Korean market. A well-developed, comprehensive IPR strategy should include registering IPR with relevant agencies, controlling it and enforcing it. At a minimum, such a strategy should include the following:

  • Registration - Register your copyright in Korea. Although Korea's copyright law is extraterritorial (that is, copyright recognized in the U.S. is also recognized in Korea), any enforcement actions can and will only take place after formalities are properly recognized. Since the formalities will take time, it will also be some time before authorities begin enforcement procedures.
  • Control - Do not allow control of your copyright to slip into the hands of your agents or distributors. Make sure you:
  • Incorporate copyright protections into contracts and marketing strategies;
  • Enter into written and enforceable contracts that require agents, suppliers, distributors and employees to protect your copyright;
  • Refuse to assign or license your copyright unless and until you fully understand the consequences; and
  • Make certain that your rights in the copyright remain with you upon termination of the assignment, license, transaction or investment.
  • Protection - If you discover that your copyright has been violated, immediately take action to protect and enforce your rights. Hiring legal counsel, informing the proper authorities, initiating investigations, raids, seizures as well as civil litigation, administrative proceedings and criminal prosecutions are some of the tools available. Before deciding which tool(s) to use, however, you should ask the following preliminary questions:
  • Is the copyright registered or otherwise protectable in Korea?
  • Is the harm being caused in Korea or overseas?

Engage the assistance of legal professionals with both Korean and IPR expertise early in the process, particularly if your product is software, and involve them in the development of your overall Korea business strategy. Membership in anti-counterfeiting organizations can also be helpful.

Useful Links

Click "here" for useful links.


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