Contributed By Yoon & Yang LLC
South Korea became a party to the Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) in 1996, joined the World Intellectual Property Organization (WIPO) Copyright Treaty in 2004 and the WIPO Performance and Phonograms Treaty in 2008.
South Korea is an original member of the World Trade organization (WTO) and follows the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).
South Korea is also a party to:
Article 3(1) of the Copyright Act provides that copyright protection is extended to copyrighted works of foreign authors in accordance with international treaties to which South Korea is a party.
Article 3(2) of the Copyright Act further stipulates that works of foreign authors who permanently reside in South Korea or works that are first published in Korea can be protected under the Copyright Act, regardless of international treaties.
Foreign copyright owners do not need to follow specific steps to secure such protection.
Under Article 2(1) of the Copyright Act, the term “copyrighted works” are defined as “creative works of authorship which express human thoughts and emotions.” In other words, to qualify for copyright protection, a work is required to have creativity and express human thoughts and emotions. The “creativity” is recognised if the work is an original expression created by the author without copying expressions of others. Such requirements for copyright protection apply to all works of authorship.
Upon the creation of works which meet the requirements for copyright protection, copyright protection is automatically granted with no need for a special notice or registration.
While it is not mandatory, registration of copyrights can establish a presumption of the facts stated in the registration certificate (eg, the identity of the author, the date of the creation and the date of the first publication). Anyone infringing a registered copyright is presumed to have been negligent in infringing the copyright.
Registration of copyrights can be checked at the official website of the Korea Copyright Commission.
Article 4(1) of the Copyright Act provides categories of copyrightable works including literary works, musical works, dramatic works, artistic works, architectural works, pictorial works, audio-visual works, graphic works and software works. Articles 5 and 6 of the Copyright Act provide protection for derivative works and compilation works.
The list of categories provided in Article 4(1) of the Copyright Act is not comprehensive. Copyright protection can be awarded to any work that meets the general requirements under Article 2(1) of the Copyright Act (see 2.1 Copyright Protection: Essential Elements). Fixation is not required for copyright protection. Unrecorded improvisations can be protected.
Software is a category of creative works protected under the Copyright Act. Article 2(16) of the Copyright Act defines “software works” as “creative works expressed as a series of instructions used, to obtain a specific outcome, directly or indirectly within devices (such as computers) which have the capability to process information.”
To qualify for copyright protection, software is not required to meet specific elements other than the general requirements for protection. However, the Supreme Court tends to carefully examine the creativity of functional works such as software. The creativity of a functional work is rarely recognised if the work expresses practical ideas or functions in accordance with expressions generally used in the field. The Copyright Act protects software not for its function, but for creative expressions of a series of instructions which implement such function.
New and advanced technical ideas or functions of software can be protected under the Patent Act. The protection under each law does not preclude the possibility of protection under the other law.
Databases may be protected as compilation works. Compilation works are protected under the Copyright Act, if the creativity is recognised in their collection and arrangement of materials.
Regardless of whether the database meets the elements required for copyright protection as compilation works, the Copyright Act accords certain rights (ie, the rights to reproduce, distribute or transmit the whole or substantial portion of the database) to a person who has made a substantial investment in the production, update, verification or supplementation of the database. Such protection is available apart from and in addition to copyright protection.
Industrial designs may benefit from copyright protection if they are works of applied art. In addition to meeting the general requirements for copyright protection, works of applied art must be able to be reproduced in the same shape on articles and must be separable from the articles wherein they are used.
In addition to copyright protection, industrial designs can be registered and protected under the Design Protection Act, if they meet certain requirements such as industrial applicability, novelty and creativity. The holder of a registered design has the exclusive right to practice the design and any similar designs as business.
The Unfair Competition Prevention and Trade Secret Protection Act (“Unfair Competition Act”) provides certain protection for unregistered designs. If unregistered designs pertain to a product less than three years from production and are not in the usual form of products of the same kind or products having the same function and utility, it is prohibited to transfer, import or export products which imitate such designs. These protections are cumulative.
Difference in Protection Under Each Law
Design protection under the Design Protection Act differs from copyright protection in that:
Protection under the Unfair Competition Act is available for “three years after the product is in shape.”
The Copyright Act does not provide specific categories other than the categories listed in Article 4(1) for copyright protection. However, copyright protection for the following categories is frequently discussed.
Visual expressions of fictional characters may receive copyright protection separately from the underlying work, if they express the originality of the author. As a general principle, literary expressions of fictional characters pertain to ideas, and as such they do not merit copyright protection, while they may be considered as expressions protected under the Copyright Act if they are expressions of characters having specificity, originality and complexity or being closely related to the development of stories through interactions with other characters.
The underlying ideas or concepts of TV formats are not accorded copyright protection. However, in light of recent rulings of the courts, TV formats for unscripted reality shows may receive copyright protection if:
Copyright does not generally protect sports events. Videos of sports events may be protected as audio-visual works if they meet the general requirements for copyright protection.
Advertising Copy and Product Labels
Copyright protection may be available for advertising copy or product labels, if they are sufficiently original. Short phrases or slogans with a combination of a small number of words or product labels with simple designs are not generally accorded copyright protection.
Copyright does not protect the ideas or concepts of museum exhibitions. However, museum exhibitions may be protected to the extent that their layout or arrangement is original. Text or images introducing exhibitions may be protected if they meet the general requirements for copyright protection.
Websites may be protected as compilation works if there is the originality in their layout or arrangement.
Copyright protection generally does not extend to recipes. However, cookbooks which are original in their layout or arrangement may be protected as compilation works. Copyright protection may also be available for images or photographs used in recipes.
Perfumes are not a category of protectable works listed in Article 4(1) of the Copyright Act. Copyright protection for perfumes has not been discussed by the courts.
Maps are a category of protectable works listed in Article 4(1) of the Copyright Act. However, not all maps are protected. Copyright protection are available for maps which are original in their expressions of natural phenomena and in the selection of such expressions.
The Copyright Act defines the term “author” as a person who created the work. Those who assisted in, or provided the driving force for the creation of the work are not “authors” of the work.
Article 8(1) of the Copyright Act further provides that the authorship of a work is presumed if a person whose real name or well-known pseudonym is indicated as the name of the author in a usual manner on the work or in the public performance or public transmission of the work.
A joint work is defined as a work where the contributions of two or more persons combine into one inseparable work. The persons who jointly created a joint work is referred to joint authors.
A joint work must meet the following requirements:
Moral rights and economic rights in a joint work can be exercised only by a unanimous consent of all joint authors. A joint author cannot transfer or encumber her rights in the joint work without the consent of the other joint authors which shall not be withheld in bad faith. However, a joint author may seek injunctive or precautionary remedies for the joint work without the consent of the other joint authors. A joint author is not also required to obtain the consent of the other joint authors when seeking monetary damage for infringement or threatened infringement of the joint work to the extent of their share thereof.
The distribution of profits from the exploitation of a joint work can be determined by the agreement of the joint authors. In the absence of such agreement, profits are distributed according to the proportion of the contributions of the joint authors. If the proportion of the contributions of the joint authors is not clear, it is presumed to be equal.
Anonymous or Pseudonymous Works
Copyright protection may be available for anonymous or pseudonymous works. In the case of anonymous works, the person indicated as a publisher, public performer or the person who made the work public is presumed to be the author of the work (Article 8(2) of the Copyright Act). If a well-known pseudonym is indicated in the work or in the performance or public transmission of the work, the person is presumed to own the copyright of the work as the author thereof (Article 8(1) of the Copyright Act). As a general principle, the duration of the copyright of a work which is anonymous or bears a pseudonym which is not well-known lasts 70 years from the year of publication (Article 40 of the Copyright Act).
If the right holder of a published work is unknown or cannot be identified despite considerable efforts and research, such work can be exploited with the payment to the Korea Copyright Commission (Article 50 of the Copyright Act).
The copyright of compilation or collective works is distinct from the copyright of the component works arranged therein. Under Article 2(18) of the Copyright Act, collective works such as anthologies or encyclopaedias can be accorded copyright protection, if their selection, layout or arrangement of the component works meet the requirements for copyright protection, even if the component works themselves do not qualify for copyright protection.
Copyright protection can be granted to the compilation or collective work even where the work is created without the consent of the authors of the component works arranged therein. The copyright of the compilation or collective work does not affect the copyright or other rights of the component works arranged therein. The compilation or collective work which qualifies for copyright protection may be found infringing the copyright of the component works, if there was no consent of the authors of the component work.
Article 9 of the Copyright Act provides that corporations (and government entities, public institutions or universities) may qualify as the author of a work, if:
Article 2(31) of the Copyright Act defines the term “work for hire” as a work created by a person engaged by the employer under the initiative of the employer. There is no distinction between works created by employees and works created by consultant or freelance workers. A work created by an employee may not be a work for hire if it is created beyond the employee’s work scope without the supervision or control of the employer, whereas a work created by a consultant or freelance worker can be a work for hire if it is created under the initiative, supervision and control of the employer.
If the agreements between the employer and the employee or the rules of employment provide that the employee shall be the author of the work for hire, such agreements will regulate the authorship of the work, and the employee will own the copyright of the work.
Conversely, where the requirements for a work for hire are not met, the employer is not accorded the authorship of the work even if the agreements between the employer and the employee provide that the employer will be the author of the work, while such agreements may be interpreted to indicate the employee’s intention to assign its copyright to the employer.
Articles 16-22 grant the following economic rights to the copyright owner:
As a general principle, the economic rights last for the life of the author plus 70 years. The duration of the economic rights of a joint work is 70 years from the death of the last deceased author. The economic rights of anonymous works, works bearing pseudonyms which are not widely known, works for hire and audio-visual works last 70 years from publication. Under certain circumstances, the duration of the economic rights of works for hire or audio-visual works may expire 70 years from creation.
A copyright owner may transfer the economic rights in whole or in part (Article 45 of the Copyright Act). A copyright owner may authorise others to exploit the economic rights (Article 46 of the Copyright Act) and provide the economic rights as a security (Article 47 of the Copyright Act). A joint owner cannot transfer or provide as a security the economic rights in the joint work without the consent of the other joint owners (see 3.2 Joint Authorship). There is no specific requirement in transferring, authorising the use of, or providing as a security the economic rights.
Upon the death of the copyright owner, the economic rights are inherited in accordance with the Civil Act. Registration is not required for the heir to exercise the economic rights.
There is no minimum age requirement to claim or exercise copyrights. Any copyright owner (including minors) may exercise or transfer copyrights other than that the moral rights (see 4.6 Moral Rights of the Copyright Owner) are not alienable. If the copyright owner is a minor, the consent of a legal representative is required to transfer or otherwise dispose of the economic rights. No specific types of contracts or formalities are required to transfer, authorise the use of, provide as a security or otherwise dispose of copyright.
Article 20 of the Copyright Act recognises the exhaustion doctrine by stipulating that the right to distribute the work owned by the copyright owner is exhausted when the originals or copies of the work are first provided in sale with the authorisation of the copyright owner.
The copyright owner is granted the following moral rights:
Moral rights last for the life of the author. However, Article 128 of the Copyright Act provides that even after the death of the author, the surviving family members or the executor of the author’s will may seek injunction or restoration of reputation against an infringement of the author’s moral rights.
Moral rights are inalienable and cannot be transferred or inherited (Article 14(1) of the Copyright Act).
South Korea implements anti-circumvention measures along the lines of Article 11 of the WIPO Copyright Treaty.
Article 2(28) of the Copyright Act defines “technical protection measures” as measures to prevent or restrict an act of infringing copyright. Technical protection measures include DRM, encryption and copy protection. Article 104-2 of the Copyright Act prohibits circumventions of technical protection measures by removing, altering or bypassing them. The circumvention prevented by the Copyright Act encompasses production, import, distribution or sale of devices or components used for the circumvention.
The anti-circumvention rules do not apply if necessary:
Article 104-8 of the Copyright Act allows the copyright owner to seek injunction or damages against the person who circumvented technical protection measures. Under Article 136(2)(iii-3) of the Copyright Act, any person who circumvented technical protection measures for commercial purposes may be subject to criminal liabilities (imprisonment up to three years and/or a criminal fine up to KRW30 million).
The Copyright Act provides legal remedies with respect to copyright management information (CMI) along the lines of Article 12 of the WIPO Copyright Treaty.
Article 2(29) of the Copyright Act defines the term CMI as information to identify the work or the copyright owner, or information relating to the method or conditions of using the work, which is attached to the work or appears in connection with the communication of the work to the public.
Article 104-3(1) of the Copyright Act prohibits anyone from:
Article 104-8 of the Copyright Act allows the copyright owner to seek injunction or damages against any person who violates the foregoing. Under Article 136(2)(iii-4) of the Copyright Act, any person who violates the foregoing for commercial purposes (except for those who, by negligence, has not known that such act causes or conceals infringement of copyright) may be subject to criminal liabilities (imprisonment up to three years and/or a criminal fine up to KRW30 million).
The collective rights management system in South Korea allows the existence of several collecting societies or agencies.
The collecting societies or agencies enter into licence agreements with the users on behalf of the copyright owner. They collect licence fees from the users and distribute to the copyright owner the amount less the administrative fees. The rates or amounts of licence fees and administrative fees must be approved by the Ministry of Culture, Sports and Tourism (Article 105(9) of the Copyright Act). The collecting societies may directly file a lawsuit against the infringer on behalf of the copyright owner.
The rights managed by the collecting societies or agencies include economic rights, exclusive rights to publish the work, neighbouring rights or rights of database producers. Multiple collecting societies or agencies may exist for each right. As of December 2020, there are hundreds of collecting agencies, and the following 13 collecting societies in South Korea:
The collecting societies, as trustees of the copyright owner, may exercise any and all economic rights of the copyright owner, including filing a lawsuit against an infringer, provided that the rights to produce derivative works are not encompassed in the scope of the rights administered by the collecting societies unless otherwise provided in the agreements between the collecting societies and the copyright owner (Article 45 of the Copyright Act).
In order to use a copyrighted music work in visual or audio-visual works such as music videos, dramas, movies advertisements and video games, synchronisation licence to the rights to reproduce and distribute compositions, lyrics and/or sound recording is required. The collecting societies collect license fees for the use of such synchronisation rights.
Articles 23 to 35-4, 36, 101-3 to 101-5 of the Copyright Act places certain restrictions on economic rights. For instance, copyrighted works may be used without the copyright owner’s consent in the case of the use for educational purposes or news reports, citation of published works, or incidental reproduction during the filming process.
In addition, Article 35-5 of the Copyright Act provides a general clause for fair use. Article 35-5(1) of the Copyright Act stipulates that a person may use the copyrighted work without the copyright owner’s consent, if such use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the author’s legitimate interests. The relevant factors considered in determining the use of the work is fair include the purpose or character of the use, the nature of the work, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the current and potential market for the work or the value of the work.
Article 30 of the Copyright Act provides an exception to copyright in the case of private or family use of published works for non-commercial purposes. However, even in the case of such use, reproductions by means of photocopies or cameras installed for public use are not permitted. In other words, the exception under Article 30 of the Copyright Act applies to the use of the copyrighted work in a private and closed domain only.
In the case of software, the scope of permitted use is narrower. Reproductions of software may be allowed if the software is reproduced for personal purposes and not for commercial purposes at a limited place such as home and without unreasonably harming the copyright owner’s interests (Article 101-3(1)(iv) of the Copyright Act).
Article 35(2) of the Copyright Act provides an exception to copyright in the case of reproductions of artistic works, photographic works and architectural works. Artistic works, photographic works and architectural works which are permanently displayed in a place open to the public may be reproduced, unless:
Activities Carried Out by Service Providers
Articles 102 to 104 of the Copyright Act provides an exception to copyright for activities carried out by online service providers (OSP) which include:
Exceptions for Internet Access Service Providers
Article 102(1)(i) of the Copyright Act provides that to be eligible for the exception, (mere conduit) internet access service providers must meet the following requirements:
Caching Requirements to Qualify for Exceptions
Under Article 102(1)(ii) of the Copyright Act, caching service providers must satisfy the following requirements to qualify for the exception:
Storing Requirements to Qualify for Exceptions
Article 102(1)(iii) of the Copyright Act provides the following requirements to be satisfied by storing service providers or search services providers to qualify for the exception:
The use of a copyrighted work for satire or parody can be permitted as “citation of a published work” under Article 28 of the Copyright Act or as fair use under Article 35-5 of the Copyright Act.
Article 28 of the Copyright Act provides that published works may be cited for certain purposes such as criticism, education and research within a proper range in compliance with fair practices. Satire or parody may fall within the scope of criticism under Article 28 of the Copyright Act.
The factors to be considered in determining whether the citation was consistent with fair practices within a reasonable range include the method or form of the citation and the general notion of consumers in addition to the factors for fair use (see 7.1 Fair Use Doctrine/Fair Dealing). In other words, satire or parody would more likely qualify for the exception if:
In contrast to a direct satire/parody which criticises the original itself, a vehicle satire/parody which uses the original to criticise other subjects may not qualify for the exception.
The Copyright Act provides the following exceptions to copyright in relation to freedom of speech and right of information:
The Copyright Act provides neighbouring rights to performers, phonogram producers, and broadcasting organisations.
The neighbouring rights accorded to performers under Articles 66 to 76-2 of the Copyright Act include:
Articles 78 to 83-2 of the Copyright Act provides the following neighbouring rights to phonogram producers: the right to reproduce or distribute the phonograms, the right to lease the phonograms for commercial purposes, the right to transmit the phonograms, and the right to claim compensation for the use of commercial phonograms for broadcasting or compensation for digital transmission providers’ transmission of the phonograms.
The neighbouring rights provided to broadcasting organisation under Articles 84 to 85-2 include the right to reproduce the broadcasts, the right to authorise the broadcasts to be broadcast simultaneously, and the right to publicly perform the broadcasts where the performance takes place at a place accessible to the general public with entrance fees.
No specific types of contracts are required in order to transfer, licence or sell neighbouring rights.
The restrictions on economic rights apply to neighbouring rights mutatis mutandis to the extent applicable by nature. The general clause for fair use also applies to neighbouring rights mutatis mutandis (Article 87(1) of the Copyright Act).
A copyrighted work is considered as infringed when any of the exclusive rights granted to copyright owner is exercised without the permission of the copyright owner unless one of the exceptions applies.
The moral rights of the copyright owner are considered as infringed when a person publishes unpublished works without the permission of the copyright owner, when a person indicates does not indicate the name of the author against the copyright owners will, or when a person alters the copyrighted work without the permission of the copyright owner.
The following acts are also considered as infringement of copyright:
Defences available against a claim of copyright infringement include the following:
Civil and criminal proceedings are available to pursue infringement.
Under Article 123(1) of the Copyright Act, the copyright owner may file civil proceedings seeking permanent or preliminary injunction against infringement. In such civil proceedings, the copyright owner may require the destruction of infringing products or other necessary measures (including provisional measures) with no need to prove negligence or intent of the infringer. Article 125 of the Copyright Act provides that the copyright owner may claim damages for negligent or intentional infringement.
In addition, under Article 127 of the Copyright Act, the copyright owner may seek necessary measures to restore reputation against a person who negligently or intentionally violated the moral rights of the copyright owner. There is no formalities required before initiating such civil proceedings.
The copyright owner may also pursue infringement in criminal proceedings. Under Articles 136 and 137 of the Copyright Act, infringement of economic rights, moral rights or neighbouring rights may result in criminal liabilities. The act of damaging the reputation of the author or performer by such infringement may also be subject to criminal liabilities.
Such criminal proceedings are initiated by the copyright owner’s filing of a complaint. However, criminal proceedings for habitual infringement for profit may be initiated without the copyright owner’s filing of a complaint (Article 140 of the Copyright Act).
There is no specialised court having exclusive jurisdiction for copyright infringement. The copyright owner may initiate copyright infringement proceedings at any of the following courts:
Proceedings where injunction or damages are claimed for infringement of economic rights or where infringement of moral rights or neighbouring rights are claimed can be initiated by the copyright owner or the neighbouring right holder.
A non-exclusive licensee which has been granted limited rights to use the copyright cannot enforce the copyright. An exclusive licensee may initiate proceedings seeking injunction on behalf of the copyright owner. In the case of damage claims, there is no established rule, but an exclusive licensee may claim damages for infringement as well.
Third parties involved in the proceedings as intervenors are bound by the remedies or sanctions awarded in the proceedings. For instance, in the copyright infringement proceeding initiated Party A against the infringer, Party B may intervene claiming that it is the true owner of the copyright and seeking injunction and damages. Party B is bound by the court’s decision on its claims, and estopped from disputing the court’s findings once the decision becomes final.
Provisional injunction proceedings are available to address urgent need to avoid imminent harm before infringement proceedings on the merits are filed.
In order to be granted provisional injunction, the copyright owner is generally required to establish the following:
Expert appraisal is available for all copyright proceedings, but not mandatory. In practice, expert appraisal is carried out in cases involving copyrighted works with technical aspects such as drawings or software, the creativity or similarity of which is difficult to analyse.
Article 124(1)(i) of the Copyright Act prohibits the import of products that would infringe copyright, if they were made in Korea at the time of import. Article 235(1)(ii) of the Customs Act prohibits the import and export of products infringing copyright and neighbouring rights.
The Customs Office has the authority to allow the owners of registered intellectual property rights to record their rights with the Customs Office. If any products reported to be imported or exported may be found to infringe the recorded intellectual property rights, the Customs Office notifies the owner of such intellectual property rights so that the owner may provide security and request seizure or detention of the infringing products. Any person seeking protection for copyright or neighbouring rights which are not registered may also request seizure or detention of the infringing products by providing security. If it is evident that the products infringe intellectual property rights, the Customs Office may seize or suspend the clearance process of the products ex officio, and notify the importer or exporter.
The Copyright Act adopts the exhaustion doctrine regarding the right of distribution (see 4.5 Copyright Exhaustion Doctrine). However, there is no explicit clause or established rule regarding international exhaustion, and thus it is unclear whether parallel imports are legal.
See 9.3 Proceedings Available to the Copyright Holder.
See 9.3 Proceedings Available to the Copyright Holder.
In addition, Article 139 of the Copyright Act provides that copies made by infringing copyright and tools or materials owned by the infringer, copier, distributor or performer and used in the producing of the copies are confiscated.
Under Article 133(1) of the Copyright Act, the Ministry of Culture, Sports and Tourism and local governments have the authority to have relevant public officials collect, discard and delete illegal copies or devices, information and software disabling technical protection measures.
The appellate procedure for copyright proceedings is the same as the general appellate procedure for civil or criminal proceedings. The decision of the court of first instance can be appealed to a high court or the appellate division of a district court. The decision of a high court or the appellate division of a district court is appealed to the Supreme Court.
As a general principle, the losing party bears the litigation cost (Article 98 of the Civil Procedure Act). The attorney’s fees incurred by the other party may be included in the litigation cost only to a certain extent calculated by the Rules on the Inclusion of Attorney’s Fees into the Litigation Cost. Assuming that the amount claimed is KRW100 million, the attorney’s fees borne by the losing party will be KRW7.4 million.
In accordance with Article 113 of the Copyright Act, the Korea Copyright Commission mediates copyright disputes involving economic rights, moral rights, neighbouring rights, or compensation. The mediation administered by the Korea Copyright Commission is commonly concluded within three months. The mediation procedures are conducted privately and relatively inexpensive. Disputes where a relatively small amount is claimed, such mediation are increasingly settled by such mediation, but it is not a common way of settling copyright cases. Since the commencement of the medication system in 1988, only 2,200 cases have been submitted to the mediation and 49% of them have been settled.