Details of the act
Legislative history and outlook
On April 29 2011 the National Assembly of Korea passed the Framework Act on Intellectual Property. The act will be effective from July 20 2011 and will form the basis for setting the laws, systems and policies related to IP rights in Korea.
The act clarifies the basic principles on the creation, protection and use of IP rights, including patents, trademarks and copyrights. As a result, from now on all laws, regulations, systems and policies related to IP rights in Korea should be implemented in accordance with such principles. The act is expected to have a substantial influence on IP rights in Korea.
Going forward, the important issues related to IP rights in Korea, including those set forth below, will be reviewed and examined within the frame of the act.
The act details:
- methods to improve the examination review, IP Tribunal review and court review systems, focusing on ways to encourage non-court-related dispute resolution procedures (eg, IP mediation and arbitration) and to centralise jurisdiction to one authority while moving away from the current bifurcated system where infringement actions and invalidation actions are administered by different authorities;
- methods to regulate the abuse of IP rights and to regulate misappropriation of technology in order to promote fair use of intellectual property;
- methods to strengthen crackdowns and inspections regarding infringing activities; and
- policies that entitle a creator of IP rights to receive fair compensation, including compensation for employee inventions.
In the past, Korean IP rights have been regulated by and under various standalone statutes, depending on the type of IP right concerned (eg, patents, trademarks or copyrights). As such, the departments in charge of covering the various IP rights have set and implemented individual and fragmented policies.
The IP Framework Act clarifies the basic principles on the creation, protection and use of IP rights and aims to promote the systematic and efficient implementation of IP rights-related policies in accordance with coherent and consistent principles. The Office of the Prime Minister has taken the initiative and lead, combining the many different and fragmented IP rights-related policies covered by several different departments, with the aim of further strengthening the nation's competitiveness in the age of knowledge-based economies.
The purpose of the IP Framework Act is to establish a system by which the government can implement and promote basic policies related to intellectual property via a framework for the creation, protection and use of IP rights, so that the value of intellectual property can be realised to the fullest extent in Korea.
The act aims to:
- promote the creation of superior intellectual properties;
- protect IP rights effectively and stably;
- promote the application of IP rights;
- promote reasonable and fair use of IP rights; and
- promote harmonisation between domestic and international rules concerning intellectual property.
Any new legislation or amendments related to intellectual property should be made in compliance with the above aims and the basic principles.
National IP Basic Plan
The government will set and implement a National IP Basic Plan every five years. The basic plan will set and present, for the upcoming five years, detailed policy goals and the basic directions of the relevant departments covering matters related to the creation, protection and use of intellectual property.
National IP Committee
The National IP Committee, under the direct control of the president, will be established in order to review and coordinate major policies and plans related to intellectual property and to monitor and evaluate the status of those policies and plans. The prime minister and a private expert will act as joint chairpersons of the committee, which shall consist of not more than 40 members, including the heads of the relevant government agencies and private IP experts.
In addition, expert committees consisting of private experts for each area, such as the creation, protection and use of intellectual property, will be created. A secretariat office consisting of public officials of relevant departments, such as the Korean IP Office and the Korea Fair Trade Commission, will also be established. It is expected that the secretariat office will play an important role in the enforcement of the act.
If the government wishes to enact laws and regulations related to intellectual property or to establish or change major policies and plans of the government, it must notify the National IP Committee of the details of such laws or changes in the policies thereof. The committee may provide recommendations or opinions on the laws, regulations or policies, and the government must do its best to reflect the committee's recommendations or opinions in the concerned laws, regulations or policies.
Legislative history and outlook
The act was introduced to the National Assembly in August 2010. The assembly passed the act on April 29 2011 as a result of the persistent and active efforts of the Office of Prime Minister for legislation. The act is scheduled to become effective on July 20 2011.
The enforcement decree and the basic plan are under discussion among the relevant departments before implementation of the act later this month. In addition, it is expected that the formation of the National IP Committee and the expert committees will be completed before implementation of the act, and that the National IP Committee will prepare and set schedules to review and finalise the basic plan in parallel with the implementation of the act. Once the basic plan has been finalised, it is anticipated that each department will establish and implement detailed implementation plans in accordance with both the act and the basic plan.
For further information on this topic please contact Hun Shik Kim or Douglas J Kim at Kim & Chang by telephone (+82 2 3703 1114), fax (+82 2 737 9091 3) or email ([email protected] or [email protected]).