South Korea

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? In part
The provision which extends the copyright protection term to 70 years pma will be enforced on July 1, 2013.
CAK Article 39
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? 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.
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? In part
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.
Constitution Articles 21, 22, 31
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
CAK Article 2, 91
Are rights holders prohibited from excluding user rights under copyright law? No
Is computer software excluded from the scope of patentable subject matter? No
There is no relevant provision in the Patent Act, but examination guideline on computer-related invention.

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? In part
An open-ended fair use provision has been passed and will be in effect after the efafectivation of KOR-US FTA.
CAK Article 35-3
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
If a work is used for the purpose of personal, family or other similar uses within a limited circle. or 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 30, 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.
For EducationMay students copy works for private research or study? Yes
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 educators copy works for use in the classroom? Yes
A person who intends to exploit a work shall pay compensation to the owner of author's property rights according to the criteria for compensation as determined and published by the Minister of Culture and Tourism.
CAK Article 25(2), 25(4)
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? In part
It is not self-evident and may depend on individual circumstance. The temporary copies provision, article 22(2) and article 35-2, has been passed and will be in effect after the efafectivation of KOR-US FTA.
CAK Article 22(2), Article 35-2
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
CAK Article 102
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? 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
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? In part
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 reproduced or transformed for the purpose of reverse-engineering interoperable software? In part
When it is difficult to gain information necessary for compatibility and it is inevitable to gain such information.
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
By the pressIs there a copyright exception for the news of the day? In part
by other media organizations, 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 26, 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 27, 28
May quotations be used for any purpose? In part
Only for news reporting, criticism, education and research, etc. and where compatible with fair practice.
CAK Article 28
By LibrariesMay libraries copy works if they 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(1)
May librarians copy works for users for the purpose of research or study? In part
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)
Can lending libraries operate without incurring public lending rights fees to copyright owners? In part
A lending rights is granted only to the owner of record and computer program for sale.
CAK Article 21
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? In part
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 affairsAre laws excluded from copyright? Yes
CAK Article 7
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? No
There is no provision on this issue.
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? 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.
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? Yes
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 of copyright works 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 national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? In part
There is no provision on this issue in CAK, but there is some public support to promote open source software, ossw portal (http://www.oss.kr/oss_en_1_1).
Are there national programmes or policies that specify or promote the use of open document formats? No
There is no provision on this issue.

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
Is innocent infringement of IP treated differently by the law? No
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? 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 104-2
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? Yes
CAK Article 104-2
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? No
CAK 123
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? 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 or to suspend user's account for maximum 6 months.
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 limited to the loss sustained, rather than a pre-established or statutory damages award? No
In those cases where incurrence of damages is recognized, but it is difficult to estimate the amount of damages, the court may set a reasonable amount of damages by taking into consideration the gist of arguments and the results of evidentiary investigations. The pre-established damages provision, article 125-2, has been passed and will be in effect after the efafectivation of KOR-US FTA.
CAK Article 125-2, 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), 123(4)
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition? No

Recent or upcoming changes

The motion for ratifying KOREA-EU FTA had been passed in the assembly on June 23, 2011. The governing party had rushed through the motion for ratifying KOREA-US FTA regardless of opposition of the opposing parties and civil society organizations. The revisions of the copyright act, the patent act, etc for implemementation of FTA had been passed together with the motion. KOREA-EU FTA had already been effective, and KOREA-US FTA is scheduled to take effect on March, 15 by the announcement of the government. 

 
KOREA-EU FTA contains extension of copyright protection term, TPM for access control, protection of geographical identification, reinforcement of protection, etc. in the IP chapter. KOREA-US FTA contains extension of neighboring rights protection term, the protection of temporary copies, etc as well as most of provisions of KOREA-EU FTA. 
 
KOREA-EU FTA and KOREA-US FTA had raised the level of protection beyond the WTO TRIPs and WIPO treaties resulting in threatening the consumer's right seriously.

Summary of position

The copyright 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 IP 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 WIPO Copyright Treaty 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 use 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 favorite 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 initiated 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 TRIPS-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.

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