Legislation and enforcement

Relevant legislation

What is the relevant legislation?

The relevant legislation includes:

  • the Copyright Act;
  • the Content Industry Promotion Act;
  • the Act on the Layout-Designs of Semiconductor Integrated Circuits;
  • the Unfair Competition Prevention and the Trade Secret Protection Act; and
  • the regulations relating thereto.
Enforcement authorities

Who enforces it?

Copyright-related legislation is enforced by the judiciary, the designated administrative agencies and the law enforcement authorities. The Korea Copyright Commission (KCC) serves as the non-judiciary dispute resolution body, while the Korea Copyright Protection Agency administers the enforcement of copyright, such as the monitoring and examination of infringement and issuance of corrective measures.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

The Copyright Act provides for the digital exploitation of works, such as the provisions governing digital transmission, and the safe harbour applicable to online service providers. Further, the Act on Prohibition of Circumvention of Technological Protection Measures, and the Content Industry Promotion Act concern the online exploitation of copyrighted works.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

While there is no specific provision addressing extraterritorial application to deal with foreign-owned or foreign-operated websites, the copyrighted works of Korean nationals, works created in Korea, and the works which Korea has the obligation to grant copyright protection under international treaties are protected under the Copyright Act.

Agency

Is there a centralised copyright agency? What does this agency do?

This role is performed by KCC and the Ministry of Culture, Sports and Tourism (MCST). KCC is delegated by the MCST to handle various tasks related to copyright protection, including mediation of copyright disputes, registration of copyright, issuance of corrective measures, conduct of education and research on policy, etc, whereas the MCST sets the policies and standards for applying the Copyright Act and designates and authorises the relevant organisations.

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

Creative works which express human thoughts and emotions can be protected by copyright. As examples, article 2 of the Copyright Act states that the following can be protected by copyright: novels, play or film scripts, dissertations, musical works, choreographic works, paintings, architectural works, maps, cinematographic works, photographic works, and computer programs.

Unless provided otherwise, all provisions referenced herein refer to the Copyright Act.

Rights covered

What types of rights are covered by copyright?

There are seven economic rights:

  • right of reproduction;
  • public performance;
  • transmission;
  • exhibition;
  • distribution;
  • rental; and
  • production of derivative works.
Excluded works

What may not be protected by copyright?

Mere ideas are not protected. In addition, laws, public notices, judgments, the translations thereof by the central or local governments, or news reporting that delivers simple facts are not protected (article 7).

Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

Yes. In determining whether a person can avail of the fair use defence, the following factors are considered:

  • the purpose and characters of use, including whether such use is for-profit or not-for-profit;
  • the nature of work;
  • the amount and substantiality of portion used in relation to the entire work; and
  • the effect of use of works on the current or potential market.
Architectural works

Are architectural works protected by copyright? How?

Yes. Architectural works including buildings, architectural models and designs are protected (article 4). In the case of architectural structures, the ‘reproduction’ includes carrying out construction of the works in accordance with the design plans.

Performance rights

Are performance rights covered by copyright? How?

Yes. The copyright owner has the right to publicly perform the work, whereas performers’ rights are protected as neighbouring rights comprising the economic rights and moral rights.

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

Yes. While performances are protected under the Copyright Act as ‘Performers’ Right’, integrated circuit layouts and hot news are protected by the Act on the Layout-Designs of Semiconductor Integrated Circuits and the Unfair Competition Prevention and Trade Secret Protection Act.

Moral rights

Are moral rights recognised?

Yes. The rights to make the work public, right of authorship, and right of integrity are protected as moral rights.

Copyright formalities

Notice

Is there a requirement of copyright notice?

While there is no prescribed requirement for copyright notice, the use of the © symbol is typical and recommended.

What are the consequences for failure to use a copyright notice?

Not applicable.

Deposit

Is there a requirement of copyright deposit?

No. There are no particular formalities that are required for a work to be copyrighted. To register a copyright, however, a copy of the copyrighted work must be submitted.

What are the consequences for failure to make a copyright deposit?

Not applicable.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

Yes. The copyright to the work can be registered through registering with the MCST by recording the work in the copyright register (article 55).

Is copyright registration mandatory?

No. Although copyright registration is not mandatory to effectuate the copyright, registration is required in order to claim statutory damages in a copyright infringement action.

What are the fees to apply for a copyright registration?

In applying for a copyright registration, it costs 20,000 won for online applications, or 30,000 won for offline applications, in each case excluding the registration tax of 3,600 won per copyrighted material. For registering the copyright of computer programs, the fees are 60,000 won for online applications or 50,000 won for offline applications, excluding a registration tax of 3,600 won per program.

What are the consequences for failure to register a copyrighted work?

The owner of an unregistered copyright cannot claim statutory damages in an infringement action.

Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

The author, or the creator of the work, holds both the economic and moral rights in the work. Since copyright may be assigned, the assignee can become the owner of the work, except for the moral rights which are inalienable, personal rights of the original author.

Employee and contractor work

May an employer own a copyrighted work made by an employee?

Yes. A work created by an employee during the course of performing the employee’s duties will be deemed a work-made-for-hire, and the rights in such work are owned by the employer unless otherwise stipulated in a contract or employment policy (article 9).

May a hiring party own a copyrighted work made by an independent contractor?

Yes. However, work-made-for-hire in a non-employment context is more difficult to be recognised than in an employment context. It is therefore highly recommended to execute an agreement that expressly provides for the assignment of the copyright in the work created by the outside consultant to the party commissioning the work.

Joint and collective ownership

May a copyrighted work be co-owned?

Yes. A copyrighted work may be co-owned, and the co-owner may be an individual or a legal entity.

Transfer of rights

May rights be transferred?

Yes. The author’s economic right can be assigned in whole or in part. Even where an author’s economic right is assigned in whole, the right of the production and use of derivative works is not presumed to be included in the transfer unless otherwise expressly agreed. Moral rights are unassignable but can be waived (ie, the author may agree not to exercise the moral rights in the work).

Licensing

May rights be licensed?

Yes. The author’s economic rights can be licensed in whole or in part. The licensee will be entitled to exploit the work in the manner and within the scope provided by the licence. The licence cannot be transferred to a third party without the consent of the holder of author’s economic rights. The scope of a copyright licence is restricted to those explicitly written in the licence agreement and is construed very narrowly. Therefore, a copyright licence must include a clear scope for the licence.

Are there compulsory licences? What are they?

Where the party wishing to use a copyrighted work is unable to identify the rights holder, such person may exploit the work after obtaining the approval from the MCST (article 50). In such case, the compensation set by the MCST must be deposited with the MCST and the intent to use and the date of use need to be specified.

Are licences administered by performing rights societies? How?

Yes. The Korean Music Copyright Association and the Korean Society of Composers, Authors, and Publishers collect the royalties from music copyright, whereas the Recording Industry Association of Korea and the Federation of Korean Music Performers administer the rights of the record labels and music performers, in each case, pursuant to the collection guidelines approved by the MCST.

Termination

Is there any provision for the termination of transfers of rights?

No.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

Yes. Documents evidencing transfers and other transactions can be recorded with the KCC and such application for recordation must be filed with the application form, identification documents, list of the copyrighted works, copy of the contract, consent or affidavit from the assignor if the applicant is the assignee, etc.

Duration of copyright

Protection start date

When does copyright protection begin?

Copyright protection begins at the time of the creation of the work.

Duration

How long does copyright protection last?

Protection will last for 70 years after the death of the author or, in the case of a jointly owned work, for 70 years after the death of the last surviving co-author (in principle). The copyright in works-made-for-hire and cinematography continues to subsist until 70 years following the publication of the work; or, if the work is not made public within the first 50 years of its creation, then until 70 years following the work’s creation.

Does copyright duration depend on when a particular work was created or published?

Yes. From 1 July 2013, the copyright protection period has been increased from 50 to 70 years from the date of the death or the publication of the author. However, for works whose copyright term expired prior to 1 July 2013, the extended term for 70 years does not apply. The work of an author who died before 31 December 1962 is protected until 50 years after the death, while the work of a writer who died after 1 January 1963 is protected until 70 years after the death according to Copyright Act revised by statute no. 10807.

Renewal

Do terms of copyright have to be renewed? How?

No.

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

Yes. The Copyright Act was revised effective from 1 July 2011, thereby extending the term of the copyright from the author’s lifetime plus 50 years to the author’s lifetime plus 70 years.

Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

Reproduction, performance, screen presentation, public transmission, recitation, exhibition, distribution, rental, translation or adaptation without the copyright owner’s approval constitutes copyright infringement.

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

While the Copyright Act itself does not expressly provide for an indirect infringement theory for copyright, the case law has recognised such a concept which carries both civil and criminal liability in certain circumstances. As to what constitutes indirect infringement, the Korean Supreme Court has held that the crime of aiding and abetting copyright infringement includes any direct and indirect acts of facilitating or accommodating illegal reproduction activities, and indirect infringement does not require actual or specific knowledge as to the timing, location or identity of the infringer.

Available remedies

What remedies are available against a copyright infringer?

The available remedies include: injunction, compensation for damages, measures for the restoration of honour and reputation (such as a public apology), and disgorgement of unjust enrichment.

Limitation period

Is there a time limit for seeking remedies?

Yes. Compensation for damages must be claimed within the earlier of 10 years from when the infringement took place, or three years from when the copyright owner became aware of the damage caused by the infringement and the identity of the infringer.

Monetary damages

Are monetary damages available for copyright infringement?

Yes.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Yes. Attorney’s fees and costs may be claimed within certain limits set by the court.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Yes. An infringer of another’s economic rights or other proprietary rights by means of reproduction, performance, public transmission, exhibition, distribution, rental, or production of derivative works can be subject to imprisonment of up to five years or a fine of not more than 50 million won, or both.

A person who defames the author or performer by infringing on the moral rights can be punished by imprisonment of up to three years or a fine of not exceeding 30 million won, or both.

In addition, the act of illegal reproduction of database, filing for false registration, failure to indicate the source of authorship is each criminally actionable.

Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

Yes. A person who infringes on the business interests of a content creator and a person who, without the authorisation, provides, imports, manufactures, transfers, leases, forwards or exhibits for transfer or lease technologies, services, devices or main parts thereof with the main purpose of neutralising the technological protection measures is punishable by imprisonment of up to two years or by a fine of not exceeding 20 million won.

Prevention measures

How may copyright infringement be prevented?

Monitoring of newly released works can be an effective way to avoid infringement. Prior to using a copyrighted work, the user must ascertain all rights holders of the work. For example, a musical work involves various rights holders, including the composer, lyricist, performers and record labels. In the case of musical works, copyright administration is usually entrusted with the collecting societies making the clearance of the copyright easy.

Copyright notice can also deter infringement. Although a copyright notice is not required for the work to be protected for copyright, indicating the notice can discourage unlawful use of the work by reminding the user of the need to seek permission before using the work. Copyright registration, while not required for copyright protection, is required in order to claim statutory damages in copyright infringement action and the registration also serves as constructive notice to the public.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

South Korea became the signatory to the Universal Copyright Convention in 1987, and joined other the copyright-related international treaties and conventions as follows:

  • Convention Establishing the World Intellectual Property Organization;
  • Universal Copyright Convention;
  • Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms;
  • Agreement on Trade-Related Aspects of Intellectual Property Rights;
  • Berne Convention for the Protection of Literary and Artistic Works;
  • World Intellectual Property Organization Copyright Treaty;
  • International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations;
  • World Intellectual Property Organization Performances and Phonograms Treaty;
  • Convention Relating to the Distribution Of Programme-Carrying Signals Transmitted by Satellite;
  • Beijing Treaty on Audiovisual Performances; and
  • Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

What obligations are imposed by your country’s membership of international copyright conventions?

South Korea is bound by the principle of the most favoured nation treatment in accordance with the Berne Convention for the Protection of Literary and Artistic Works (Paris Act), the Universal Copyright Convention (Paris Act), and the principle of reciprocity in accordance with the Berne Convention (Paris Act).