We specialize in providing legal support and guidance for safeguarding and leveraging intellectual property rights concerning copyright protection in Korea, specifically for foreign works. Our team of experienced IP attorneys is dedicated to ensuring the protection of these valuable assets and maximizing their commercial potential.
Copyright Protection in Korea for Works of Foreigners
1) Copyright Protection for Foreign Works in the Republic of Korea: Treaty Safeguards and Residency Criteria
Foreign works can be safeguarded in accordance with the treaties ratified or acceded to by the Republic of Korea. Works created by foreigners who reside permanently in the Republic of Korea, including stateless individuals and foreign legal entities with their main offices located in the Republic of Korea, will be protected under the Copyright Act if their works were first made public in the Republic of Korea within thirty days after their initial publication in a foreign country.
2) Reciprocal Protection of Copyright: Foreign Works and Nationals in the Republic of Korea
When a foreign country does not provide protection for works created by nationals of the Republic of Korea, the Republic of Korea can restrict the protection of works by nationals from that foreign country in accordance with treaties and the Copyright Act. However, this restriction does not apply to individuals who permanently reside in the Republic of Korea or stateless persons. This principle is known as reciprocity. For example, if a foreign country, which is a party to a treaty ratified by the Republic of Korea, does not grant copyright protection to computer programs, the Republic of Korea is not obligated to protect computer programs created by authors who hold the nationality of that foreign country.
3) Copyright Duration and Economic Rights: Protection and Duration of an Author's Work
The copyright of an author's work is protected throughout their lifetime, and the economic rights to the work remain in effect for 70 years after the author's death. When calculating the duration of an author's economic rights, the term begins from the year following either the author's death, the creation of the work, or the public release of the work. In the case of a work created through joint authorship, the economic rights of the authors persist for 70 years after the death of the last surviving co-author.
4) Benefits and Importance of Copyright Registration: Presumption, Statutory Damages, and Legal Effectiveness
Registering a work for copyright is not mandatory to obtain copyright protection, as the protection is automatically granted upon the creation of the work. However, copyright registration offers several advantages. Firstly, it establishes a presumption of the copyright holder and the date of creation or publication as stated in the registration. Secondly, seeking statutory damages is possible in cases of infringement of a registered copyright. Additionally, registering a copyright allows for its recording with the Customs Office, enabling border control measures against suspected copyright infringement. Moreover, any individual who infringes upon registered copyrights is presumed to have acted negligently in their infringement.
For the transfer of an author's economic rights, except in cases of inheritance or other general successions, or for imposing restrictions on the disposal of such rights, registration is necessary. This registration ensures effectiveness against any third party with conflicting legal interests. The registration process for copyright is administered by the Korea Copyright Commission.
Economic rights
1) The economic rights of an author refer to their exclusive rights to utilize their works, either personally or by granting licenses to others, in order to derive commercial benefits from the utilization of those works. These economic rights can be partially or wholly transferred and are subject to limitations in terms of scope and geographical area. When a right is transferred, the author relinquishes their privileges, and the new copyright holder gains legal control over the transferred work.
In the interest of public welfare, and to promote the fair use of works for the advancement and enrichment of culture and related industries, there are certain circumstances in which the economic rights can be restricted. The Copyright Act specifies situations such as educational use within schools and private reproduction, where limitations can be applied to these rights.
2) The creator of a copyrighted work possesses the sole authority to permit or restrict the following actions: reproduction, performance, public transmission, exhibition, distribution, rental, and the creation of derivative works. These seven categories of economic rights, as acknowledged by the Copyright Act, can be defined as follows.
(i) Right of Reproduction
The right of reproduction grants the author the exclusive authority to duplicate their work. Reproduction entails the act of creating a tangible representation of the work, whether through printing, photographing, copying, recording audio or visual content, or any other suitable means. In the case of architectural works, reproduction includes the construction of a building based on the corresponding models or plans.
(ii) Right of Performance
The right of performance grants the author the exclusive privilege to publicly present their work. Public performance involves the act of showcasing works, performances, phonograms, or broadcasts to the general public through activities such as acting, musical performances, singing, narrating, reciting, screening, playback, or other suitable means. Examples of public performances include staging a play in a theater and screening films for an audience. Public performance also encompasses transmission (excluding interactive transmission) conducted within connected premises under the control of the same individual.
(iii) Right of Public Transmission
The right of public transmission entails the authority to transmit works to the general public. Public transmission involves making works, stage performances, phonograms, broadcasts, or databases available to the public through wire or wireless means, enabling the public to receive or access them.
Public transmission includes broadcasting, interactive transmission, and digital sound transmission. Broadcasting refers to the simultaneous transmission of sound or images, or both, for reception by the public. Interactive transmission involves providing works, etc., to the public in a manner that allows individuals to access them individually, from a place and at a time of their choosing. This includes transmissions facilitated by activities like uploading copyrighted works. Digital sound transmission involves transmitting sounds in a digital format upon the request of the public, with the intention of simultaneous reception. It explicitly excludes interactive transmission. An example of digital sound transmission is webcasting.
(iv) Right of Exhibition
The right of exhibition grants the author the authority to publicly display the original work or a copy of it. Exhibition is understood as the act of presenting the original or a replica of the work in a state where the public can freely observe it.
(v) Right of Distribution
The right of distribution encompasses the author's prerogative to either transfer, through assignment or rental, the original or a copy of the work to the public, either for free or for a fee. This right is applicable only to the initial transaction involving the copy of the work, and it does not restrict the resale of that copy.
(vi) Right of Rental
The author possesses the right to authorize the commercial rental of publicly released phonograms or programs with the intention of generating profit.
(vii) Right to Create Derivative Works
The author possesses the right to create and utilize derivative works based on their original work. A derivative work is a creative rendition produced through means such as translation, arrangement, alteration, dramatization, or cinematization of the original work. These derivative works are protected as independent creations, but permission from the author of the original work is necessary to produce them since they incorporate content from the original.
Moral Rights
1) Moral rights of an author encompass personal rights aimed at safeguarding the author's integrity and non-economic concerns. The significance of an author's works often transcends their monetary value, as the works are intimately connected to the individual author who dedicated their emotions and intellect to their creation.
Moral rights are exclusively exercisable by the author and cannot be sold or transferred, in contrast to economic rights.
2) The Copyright Act recognizes the following specific types of moral rights:
(i) Right of Disclosure
Authors possess the right to determine whether or not their work should be made public. In cases where authors have transferred their economic rights or granted authorized use of their unpublished work, or have established exclusive publication or print-publication rights, it is presumed that they have given consent to its public release. Similarly, if authors have transferred ownership of an unpublished original work of art, architectural work, or photographic work, it is presumed that they have given consent for its public exhibition. Additionally, when derivative works or compilation works, made with the author's consent, are made public, their originals are also considered to have been made public. When authors donate unpublished works to libraries or other institutions, it is presumed that they consent to their public availability unless expressly stated otherwise.
(ii) Right of Attribution
Authors possess the right to be credited under their real name or pseudonym on the original work, its copies, or any medium through which the work is made public. Unless the author has expressed specific intentions, anyone using the author's work should attribute it by their real name or pseudonym, following the author's indication. However, in exceptional cases where the nature of the work, purpose, manner of use, etc., make it unavoidable, this right may not be applicable.
(iii) Right of Integrity
Authors have the right to protect the integrity of their work's content, form, and title. However, authors cannot object to the following circumstances: (a) modifications deemed necessary for the purpose of school education within reasonable limits; (b) extensions, reconstruction, or alterations to architectural structures; (c) modifications necessary to enable the use of programs restricted to specific computers on other computers; (d) modifications necessary to enhance the effectiveness of programs on specific computers; and (e) other modifications within reasonable limits considering the nature of the work, purpose, manner of use, etc., provided they do not substantially alter the content of the work.
3) In cases of intentional or unintentional infringement of an author's moral rights, the author has the right to seek damages. Additionally, the author or performer may also seek redress for the restoration of their honor and dignity, either independently or alongside the claim for damages. In the event of the author's demise, if there is a violation of the author's moral rights, the author's surviving family members (including the spouse, children, parents, grandchildren, grandparents, or siblings) or the appointed legal representative can demand the cessation of the infringement, request preventive measures, or seek security for potential compensation against the infringing party. They also have the right to demand the restoration of the author's honor or reputation.
If you have any questions or needs related to this, please feel free to contact us.
Read more:
- Utility Model System in Korea
- Copyright Protection in Korea for Works of Foreigners
- Protecting Trade Secrets in Korea
- Patent and Trademark Litigation in Korea
- Patent and Trademark Trial System in Korea
