South Korea

Fri, 20/02/2009 - 08:03 — Jaiok Kim

Legal background

Copyright legislation	Copyright Act of Korea ("CAK") From http://eng.copyright.or.kr/law_01_01.html
Other relevant laws	Constitution of the Republic of Korea ("Constitution") From http://english.ccourt.go.kr/home/english/welcome/republic.jsp
	Act on Promotion of Information and Communications Network Utilization and Information Protection ("APICUIP")
	Basic Law on Consumer Protection ("BLCP")
Copyright treaties	Berne Convention	Rome Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention?	YES A bill to extend the copyright protection term to 70 years pma was introduced in 2008	CAK Article 39
Must a work be fixed in some material form before copyright attaches?	NO The copyright shall commence from the time of completing a work regardless of the fulfillment of any procedure or formalities.	CAK Article 10
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power?	NO In contrast to the Patent Act that expressly allows a compulsory license to remedy anti-competitive practice, there is no corresponding provision in the Copyright Act.
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech?	LIMITED There is no relevant provision in the Copyright Act. Yet, as a general rule, the constitutional rights of freedom of expression, freedom of learning and the arts and free education may provide limits on the enforcement of copyright law, but these have not been tested in court.	Constitution Articles 21, 22, 31
Does the compilation of a database of non-original material fall outside the scope of copyright?	NO	CAK Article 2, 91
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them?	NO

Freedoms to access and use

By Home Users	Is there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria?	NO An open-ended fair use provision has been introduced at least in three Bills since 2008.
	Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)?	LIMITED If a work is used in accordance with Articles 25, 29, or 30, the work may be used by means of translation, arrangement, or adaptation.	CAK Article 36(1)
	Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes?	YES Under Artilce 30 CAK, it is permissible for a user to reproduce by himself a work already being made public for the purpose of his personal, family or other similar uses within a limited circle provided that this shall not apply to the reproduction by a photocopying machine that is set up for the public use.	CAK Article 30
	Can works be communicated to a limited public (for example, family and friends) without infringing copyright?	NO Private use under Article 30 is only permitted for reproduction. Communication to a limited public by way of, e.g., transmission of a work is prohibited. The notion of the public within the meaning of "transmission to the public" is broad enough to encompass a limited public.	CAK Article 30, Article 2.
	Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy?	NO
For Education	Is reproduction permitted for the purposes of research or study?	LIMITED If the reproduction is made for private purpose it is exempted from liability (Art. 30). Under Art. 28, it is permissible to make quotations from a work already being made public provided that they are within a reasonable limit for news reporting, criticism, education and research, etc. and compatible with fair practice. But the quotation is allowed in a limited case where the reproduced portion is not a substantial part of a work.	CAK Article 28, Article 30.
	Does any such research and study provision cover distance and online education?	YES	CAK Article 25(2)
	May translations of works be made for educational purposes?	YES If a work is used in accordance with Articles 25, 29, or 30, the work may be used by means of translation, arrangement, or adaptation. Also, if a work is used in accordance with Articles 23, 24, 26, 27, 28, 32, or 33, the work may be used by means of translation.	CAK Article 36
	May works be reproduced and published by educational institutions in connection with systematic instructional activities?	YES	CAK Article 25(2)
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	LIMITED Deeplinking is not allowed by court decisions.
	Are temporary or transient copies, incidental to a lawful use, excepted from copyright?	LIMITED It is not self-evident and may depend on individual circumstance.
	Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances?	YES In connection with the provision of services by an online service provider related to reproduction or interactive transmission of works, etc., the liability of such online service provider for infringement by other persons on copyrights or other rights protected pursuant to this Act may be reduced or waived in those cases where such online service provider prevents or stops reproduction or transmission thereof when made aware that copyrights or other rights protected pursuant to this Act would be infringed upon due to the reproduction or interactive transmission of works, etc. by the other persons.	CAK Article 102
	Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material?	NO Under CAK Article 104, certain ISPs including P2P providers and web storage service providers have to take technological measures that are interpreted as including measures to filter or monitor distribution of potential copyright infringing material.	CAK Article 104
	Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs?	NO There is no provisions for the protection of personal information of customers in CAK. Rather, APICUIP Article 44-6 requires ISPs to provide the personal information to a specific dispute resolution body upon request of a right holder (largely a right holder who intends to initiate a civil or criminal suit in connection with defamation and privacy related disputes).	APICUIP Article 44-6
By content creators	Can copyright works be non-commercially remixed or mashed up into new works?	LIMITED If a work is used for the purpose of school education, or publicly performed or broadcasting for non-profit purposes, or reproduced for private use, then the work may be used by means of translation, arrangement, or adaptation.	CAK Article 36(1)
	May computer software be reverse engineered for the purpose of creating interoperable software?	YES	CAK Article 101-4
	Is the incidental inclusion of a work in other material permitted?	NO There is no provisions to exempt the incidental infringement from liability. One case law held that a television ad containing an image showing a painting for about ten seconds constitutes a copyright infringement.
	Is there are copyright exception for parody or satire?	NO No specific exceptional provision for parody or satire. Where the parody falls within the meaning of quotation of CAK Article 28, it may be exempted. This means that satire is not an exception. Further, the court is very strict in recognising an exception for parody.	CAK Article 28
	Do creators who license their work retain the moral right of attribution?	YES Author's moral rights shall belong exclusively to the author.	CAK Article 14
By the press	Is there a copyright exception for the news of the day?	LIMITED Unless any indications of prohibition of exploitation exist. In the case of reporting current events by means of broadcasts, newspapers or by other means, it shall be permissible to reproduce, distribute, perform publicly, or communicate to the public a work seen or heard in the course of the event, to the extent justified by the information purpose.	CAK Article 27
	May copyright material be reproduced for the purposes of review and criticism?	YES To the extent that it is compatible with a fair practice.	CAK Article 28
	May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose?	LIMITED It is permissible to exploit, by any means, political speeches delivered in public and statements made in the courts of law, the National Assembly, or municipal assemblies unless the exploitation is made after editing the speeches or statements of the same author.	CAK Article 24
	May quotations be used for any purpose?	LIMITED Only for news reporting, criticism, education and research, etc. and where compatible with fair practice.	CAK Article 28
By Libraries	May libraries copy works that cannot reasonably be obtained commercially?	YES Where libraries, etc. provide other libraries etc. with a reproduction of books, etc. that are out of print or scarcely available for similar reasons at the request of other libraries etc. for their collection purpose.	CAK Article 31
	May libraries copy works for users for the purpose of research or study?	LIMITED One copy for one user is permitted and digital copy is not allowed.	CAK Article 31(1)
	Are libraries allowed to make preservation or archive copies of materials in their collections?	YES	CAK Article 31(1)
	In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)?	NO	CAK Article 124(2)
By disabled users	Is it permissible to copy or adapt work for the use of those with disabilities?	LIMITED Only by designated facilities for the purpose of promoting the welfare of visually impaired persons, etc, for non-profit purposes.	CAK Article 33
In public affairs	Are laws excluded from copyright?	YES	CAK Article 7
	Are other governmental works excluded from copyright?	NO There is no provision on this issue.
	Is there a copyright exception for use of material in judicial proceedings?	YES It shall be permissible to reproduce a work if and to the extent deemed necessary for the purpose of judicial proceedings and of internal use in the legislative or administrative organs provided that such reproduction does not unreasonably prejudice the interests of the owner of author's property rights in the light of the nature of the work as well as the number of copies and the nature of reproduction.	CAK Article 23
	Are the results of publicly funded research required to be published under an open access license?	NO

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	Imprisonment for not more than five years or a fine of not more than fifty million won, or both.	CAK Article 136
What is the maximum penalty for copyright infringement for a corporation?	As above.	CAK Article 136
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge?	NO
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright?	NO Any act of providing, producing, importing, transferring, lending, or interactively transmitting technologies, services, products, devices, or significant parts thereof for the primary purpose of neutralizing technological protection measures for copyrights or other rights protected pursuant to this Act such as elimination, modification or bypassing thereof without legitimate rights shall be deemed infringement of copyrights or other rights protected in accordance with this Act.	CAK Article 124(2)
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright?	NO	CAK Article 124(2)
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material?	NO
Are the operations of copyright collectives subject to public oversight?	YES Any person who intends to engage in copyright trust services shall obtain a permit from the Minister of Culture and Tourism. The Minister may demand a copyright management service provider to submit a report on his business concerning copyright management services.	CAK Article 105, 108
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online?	NO The government and the Copyright Commission (a governmental body) monitors ISPs and may issue an order or a recommendation to ISPs asking measures to send a warning against their users or to delete illegally reproduced mateiral.	CAK 133-2 and 133-3.
Are criminal sanctions limited to cases of large-scale commercial counterfeiting?	NO	CAK Article 136, 137, 138
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award?	LIMITED	CAK Article 126
Is there provision to penalise the wrongful allegation of copyright infringement?	YES Those who wrongfully allege copyright infringement are liabible for damages.	CAK 103(6)

Conclusions

The copyrightⁱ regime in Korea was first implemented in 1908 by the Japanese military occupation and the bilateral pact between Japan and the US. After independence, Korea enacted the Copyright Act in 1957. In 1986, the law was completely revised as a result of bilateral negotiation with the US. In 1985, the Regan Administration initiated an investigation of Korea under Section 301 of the US Trade Act. This leaded to a bilateral negotiation on the Korean IPⁱ laws including the Copyright Act. The bilateral talk carried implict threat of trade sanction upon Korea if the negotiation failed. After around 10-month talk, the Korean government acquiesced in July 1986 to accept almost all of the US demand. This resulted in an extensive revision of the Copyright Act including: copyright-like protection for phonogram producers; sui generis protection for computer programme; extension of copyright protection term; and stregthened criminal sanctions on copyright infringement.

The copyright regime has been altered several times afterwards as the surrounding environments changed and the increasing demand from trade partners (mostly from the US) for higher protection for copyright and neighbouring rights. In 2006 the second complete revision took place and the law became effective on June 29, 2007. The amendment of the copyright law has been to systemize the legal system as well as to reinforce or address new issues so that it can be admitted to international conventions such as WIPOⁱ Copyright Treat and WIPO Performances and Phonograms Treaty. The amendment contains a reinforcement of protection of "neighbouring rights", prevention of the infringement of copyright on the Internet, authority for the collection, abandonment and deletion of illegal reproductions, promotion of the usage of copyright works as well as the development of cultural industry, and the inclusion of provisions related to rights management information and Technical Protection Measures (TPMs).

From 2006 onwards, the Copyright Act has been revised in one direction towards strengthening the protection and enforcement of copyright. Certain ISPs have to take undue technological measures to prevent copyright infringement by their users and the government gets to possess ever-increasing power to police the Internet under the slogan of "fighting against online piracy." The government, cooperative with copyright industries and responsive to demands of trade partners, continues to restrict the scope of fair useⁱ and consumer's right to access to information. One notable example is a so-called "three-strike-out" rule that came into force in July 23, 2009. Under this rule, consumers may lose, up to six months, their accounts assigned by an ISP if they have been warned as copyright infringers at least three times by the government. Even the consumers may encounter their favourite web site disappearing even if they are not involved in any copyright infringement taking place in that web site.

The harsh rules for the copyright protection and enforcement are likely to be further ratcheted up by two free trade agreements recently concluded or initialled with the US and the EU. Further the Korean government has actively taken part in a secret negotiation called Anti-Counterfeiting Trade Agreement, which aims at introducing TRIPSⁱ-plus provisions for IP enforcement. To the Korean government, the copyright is merely a matter of trade or something related to industries or economic activities. Fair balance between the copyright protection and consumer's access to knowledge remains a secondary concern. The consumer's rights to take part in cultural life and to benefit from scientific progress are under threat by the biased policy taken by the Korean government and by the long-lasting outside economic coercion.

This work is licensed under a Attribution Share Alike Creative Commons license

May copyright works be freely offered for commercial rental?	LIMITED The author shall have the right to rent a commercial phonogram for profit-making purposes.	CAK Article 21
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment?	NO No provision in CAK. Thus, without an overt act of relinqishment, no work may be put into the public domain unless a right holder dies without heir.	CAK Article 49.
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain?	LIMITED Where any person, despite his considerable efforts in accordance with the criteria as prescribed by the Presidential Decree, could not identify the owner of author's property rights in works being made public (except foreigner's works), or his place of residence and therefore is unable to obtain the authorization of the author for its exploitation, he may exploit the work on obtaining the approval of the Minister of Culture and Tourism as prescribed by the Presidential Decree, and depositing a sum of compensation money according to the criteria as determined by the Minister of Culture and Tourism.	CAK Article 50
Is parallel importation permitted?	YES The author's distribution right does not include an importation right. Under Article 20, the author has the right to distribute the original or reproduction of his work unless the original or reproduction of a work is offered for transaction by means of selling, etc. with the authorization of the owner of the property rights.	CAK Article 20, Article 124(1)
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy?	NO There is no provision on this issue.
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy?	NO There is no provision on this issue.
Are there specifications or incentives in national law/policy for the use of open document formats?	NO There is no provision on this issue.