English
Français
EspañolSouth Korea
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 | ||||
| Computer Program Protection Act ("CPPA") From http://www.asianlii.org/kr/legis/laws/cppa348/ | |||||
| Consumer Protection Act ("CPA") From http://english.cpb.or.kr/laws_cpb01.htm | |||||
| Copyright treaties | Berne 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 | 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? | YES Compulsory licensing is available for a broadcasting organisation which intends to broadcast a work already made public for the sake of the public benefit, or to any person who intends to produce a commercial phonogram by recording works that were already recorded at least three years earlier, after they have negotiated with the owner but failed to reach an agreement, on obtaining the approval of the Minister of Culture and Tourism, and paying to the owner a sum of compensation according to the criteria determined by the Minister of Culture and Tourism. | CAK Article 51, 52 |
| 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 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 time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? | 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. | CAK Article 36(1) |
| Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? | YES It shall be 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? | YES On the conditions stated above. | CAK Article 30 | |
| In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing? | YES On the conditions stated above. | CAK Article 30 | |
| Are blank media and computer hardware sold free of compulsory levies collected for copyright owners? | NO | ||
| For Education | Is reproduction permitted for the purposes of research or study? | YES It shall be 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. | CAK Article 28 |
| Is it permissible to copy an entire work and to make any number of copies? | LIMITED By educational institutions, but not by students. | CAK Article 25(2) | |
| 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 Educational institutions may reproduce, perform publicly, broadcast or conduct interactive transmission a part of a work already being made public to the extent deemed necessary for the purpose of class teaching. Provided that the use of the whole parts of a work is deemed inevitable in the light of the nature of a work, and the purpose and manner of its exploitation, etc., use of the whole parts of the work shall be permissible. No compensation is payable for use at primary and secondary school level. | CAK Article 25(1), 25(2) | |
| Online | Is hyperlinking to a Web site allowed without permission of the site's owner? | YES The Korean government is proceeding with discussion on this issue now. | |
| Are temporary or transient copies, incidental to a lawful use, excepted from copyright? | YES But the Korea-USA Free Trade Agreement when implemented will reverse this position. | ||
| Is caching of Web content permitted? | YES The Korean government is proceeding with discussion in regard to temporary copies. | ||
| 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? | YES | ||
| Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? | LIMITED No cases are known in which personal data has been obtained by copyright owners under subpoena. | ||
| By content creators | Can a recording or performance of a musical work be made under compulsory license from the composer? | LIMITED After three years, and if negotiations with the owner have failed. Further such a work may be performed publicly or broadcast for non-profit purposes and without charging any fees to audience, spectators or third persons provided that the performers concerned are not paid any remuneration for such performances. | CAK Article 29, 52 |
| 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 | CPPA Article 12-2 | |
| Is the incidental inclusion of a work in other material permitted? | LIMITED 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 | |
| Is there are copyright exception for parody or satire? | LIMITED Not expressly, but this is likely to fall within the exception for criticism. | CAK Article 28 | |
| Is there a copyright exception for professional advice? | NO | ||
| 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 | |
| Does copyright law contain provisions regarding traditional knowledge/folklore? | NO | ||
| By the press | Is there a copyright exception for the news of the day? | YES Unless any indications of prohibition of exploitation exist. | CAK Article 27 |
| May copyright material be reproduced for the purposes of review and criticism? | YES To the extent compatible with fair practice. | CAK Article 28 | |
| May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? | YES It shall be 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? | YES | CAK Article 31(1) | |
| Is the reproduction of unpublished works by libraries permitted? | NO The author shall have the right to decide whether or not to make his work public. If an author has transferred by assignment his property rights in a work not yet being made public, he shall be presumed to have given the other party his consent to make it public. | CAK Article 11 | |
| Are libraries allowed to make preservation or archive copies of materials in their collections? | YES | CAK Article 31(1) | |
| By disabled users | Is it permissible to copy or adapt work for the use of those with disabilities? | YES 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 |
Freedoms to share and transfer
| 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 |
| May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner? | NO Communication to the public is a protected right, and the author has the right to authorise the distribution of the original or reproductions of his work. | CAK Articles 18, 20 |
| May works be dedicated to the public domain without legal formality besides an overt act of relinquishment? | YES | |
| 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 shall have 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 |
| 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. |
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 registration of copyright required before it may be enforced in court? | NO The copyright shall commence from the time of completing a work regardless of the fulfilment of any procedure or formalities. | CAK Article 10 |
| Is there a distinction between personal versus (large-scale) commercial use? | 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? | LIMITED Failure to notify of such limitations may infringe the consumer's right to be provided with the knowledge and information necessary for selecting goods and services. | CPA Article 3 |
| 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 |
| Is any portion of the revenues of copyright collectives set aside for benevolent purposes? | NO | |
| Are copyright collectives precluded from using their revenues for political lobbying? | NO | |
| Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries? | YES ISPs have cooperated with copyright owners in the removal of infringing hosted material, but there is no institutionalised arrangement for users to be punished for infringements. | |
| Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions? | NO Criminal sanctions apply to serious infringements. | CAK Article 136, 137, 138 |
| Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award? | LIMITED In cases where it is difficult to estimate the amount of damages, the court may set a reasonable amount of damages. | CAK Article 126 |
| Is there provision to penalise the wrongful allegation of copyright infringement? | NO |
Conclusions
The Copyright Act of Korea was first enacted in 1957. In 1986, the law was completely revised to enhance the provisions related to the protection of copyright so that the Korean government could join international conventions such as the Universal Copyright Convention (UCC). It has been altered several times afterwards as the surrounding environments changed and the demand for improved protection for copyright increased. 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 Performances and Phonograms Treaty. Although not all of these measures have been beneficial for consumers, the Korean Copyright Act remains a balanced one overall. Amongst the consumer-friendly provisions of Korean copyright law are that the term of protection is limited to the Berne minimum, there is a broad exception for personal and family use, non-profit performances of copyright works may be freely given, and compulsory licensing is available for the use of educational material (royalty-free at primary and secondary level). |
Share this post with
This work is licensed under a Attribution Share Alike Creative Commons license
