Temporary Copies

Currently, Korean law does not extend the reproduction right to cover copies made in the temporary memory of a computer, a significant and still growing manner for use of copyrighted works. The United States continues to urge Korea that both the Copyright Act and Computer Program Protection Act, Korea’s two principal copyright laws, should be strengthened by revising the laws to clarify that the copyright owner has the exclusive right to make copies, temporary or permanent, of a work or phonogram.

Transmission Rights for Sound Recordings

Responding to concerns expressed by Korean and foreign music copyright holders, an amendment to the Copyright Act has been proposed that would give copyright holders, performers, and phonogram producers significantly enhanced rights to control the transmission of their phonograms. As of the publication of this report, that legislation remained pending at the National Assembly.

Copyright Act

In 2005, National Assembly representatives proposed three bills to amend the Copyright Act, including measures to limit public performances of copyrighted works and eliminate the complaint requirement in certain cases. These measures were deliberated at the end of 2005. As of the publication of this report, these copyright amendments have not been passed.

The United States continues to discuss further improvements to the Copyright Act with the Korean government. For instance, the Act does not appear to protect technological protection measures (TPMs) that manage who can access a work, nor does it prohibit the act of circumvention of TPMs, but only the creation or distribution of circumvention tools.

Secondly, while certain provisions of the Copyright Act defining Internet Service Provider liability were harmonized with the Computer Program Protection Act (CPPA) in 2003, further clarification is required. The Copyright Act amendments still leave unclear the scope of the underlying liability of service providers and the limitations on and exceptions from liability. In addition, there are concerns that the documentation requirements for the rights holders in a takedown request are too burdensome.

The U.S. Government has told the Korean government that the private copy exceptions in Articles 27 and 71 of the Copyright Act should be re-examined in light of the growth of digital technologies. These exceptions generally should not be applicable to the Internet environment, which by its very nature extends far beyond private home use. In the digital environment, the market harm threatened by the unauthorized creation of easily transmittable perfect digital copies far exceeds the harm threatened by analog personal copying. Legislation on this issue was introduced in early 2005, but it remains unclear what next steps may be taken by Korea.

Concerning library exceptions under Korea’s Copyright Act, the U.S. Government believes that a notice period of at least 30 days should be given to right holders prior to the unauthorized digitization of their works to minimize any negative effects. Under the current law, library exceptions still apply only to literary works and not to broadcasts, performances and sound recordings.

The U.S. Government has also urged Korea to delete the reciprocity limitations relating to database protection in the Copyright Act, as it discourages the introduction of databases from countries without such legislation, including the United States.

Korea currently provides copyright protection for the life of the author plus 50 years. In line with international trends, the United States is urging Korea to extend the term of copyright protection for works and sound recordings to the life of the author plus 70 years or 95 years from date of first publication where the author is a legal entity.

Computer Program Protection Act (CPPA)

The amendment of Korea' Computer Program Protection Act (CPPA) to meet current challenges as well as to comply with new global norms continues incrementally. An amended CPPA has been proposed that would increase the power of the Program Deliberation and Mediation Committee (PDMC) and increase penalties for assorted violations of Korean IPR-related laws. The U.S. Government continues to urge the Ministry of Information and Communications (MIC) to further amend the CPPA to provide for protection of temporary copies, improved protection for technological protection measures, and a term of protection of the life of the author plus seventy years or, where the term is not calculated on the basis of a human life, ninety-five years from the date of publication. It is also important that the dispute mediation function of the PDMC be performed only where all parties to the dispute have voluntarily agreed to subject themselves to the judgment of the PDMC. Moreover, it is important that mediation by the PDMC not be a prerequisite for any civil, administrative, or criminal adjudication of rights. The U.S. Government believes that the amendments should include minimum penalties for offenses under the CPPA. The United States has also recommended that the Korean government clarify the availability of injunctive and ex parte relief in civil enforcement actions under the CPPA, as required under the TRIPS Agreement.

Data Protection

KFDA decided on March 31, 2005 that different versions of original drugs undergoing post-marketing surveillance (PMS) in Korea are subject to Korea's data protection regulations. This means that manufacturers have to supply a full portfolio of clinical data in order to obtain market approval if they intend to market their drug while the original drug is still under PMS, as required by Article 39.3 of the WTO TRIPS Agreement.

Book and Video-DVD Piracy

The "Publication and Printing Business Promotion Act" allows private sector involvement in enforcement measures against book piracy. The U.S. Government has urged Korean authorities to coordinate with foreign book publishers and right holders in order to provide effective enforcement against book piracy, especially textbooks, and will continue to monitor implementation of this law.

Pirated audio-visual DVDs, sold on the street by informal vendors, continue to be a problem in Korea. This type of piracy in Korea is increasing due to the growing sophistication of illegal production facilities and advanced distribution technologies. The U.S. Government has urged the Korean government to meet this digital piracy challenge with stronger enforcement efforts and deterrent penalties.

Patent and Trademark Acts, and Trade Secrets

The Korean Intellectual Property Office (KIPO) has amended relevant laws to address U.S. concerns regarding restrictions on patent term extension for certain pharmaceutical, agrochemical and animal health products (which are subject to lengthy clinical trials and domestic testing requirements, see "Standards, Testing, Labeling and Certification.") but an issue of continuing concern has been the lack of coordination between the Korean Food and Drug Administration, which results in the granting of marketing approval for products that may infringe on existing patents. U.S. firms have also pointed to the Korean Patent Court's apparent unwillingness to provide injunctive relief in cases where a right holder's patent has been infringed upon, allowing the infringing products to remain on the market until a final determination has been made. Although the Patent Court has the authority to issue injunctive relief, in practice it never does.

Korea's Trademark Act has been amended over the years to strengthen provisions that prohibit the registration of trademarks without the authorization of foreign trademark holders, by allowing examiners to reject any registrations made in "bad faith." Despite this change, the complex legal procedures that U.S. companies must follow to seek cancellation discourages U.S. companies from pursuing legal remedies. In particular these problems still arise with respect to "sleeper" trademark registrations filed and registered in Korea without authorization in the late 1980s and early 1990s, when KIPO was still developing a more effective and accurate trademark examination and screening process. These registrations are not challenged and removed even though Korea is a party to the Madrid Protocol, an international trademark application system and appear to be clear infringements of the rights of legitimate trademark owners.

The Korean government agreed to cooperate with the USG "Strategy Targeting Organized Piracy" (STOP!) initiative in October 2004 in an effort to halt trade in counterfeit goods, and discussions continued on best practices and possible areas for cooperation during 2005.

Korean laws on unfair competition and trade secrets provide a basic level of trade secret protection in Korea, but are insufficient in some instances. For example, some U.S. firms, particularly certain manufacturers of chemicals, pet food, and chocolate, face continuing problems with government regulations requiring submission of very detailed product information, such as formulae or blueprints, as part of registration or certification procedures. U.S. firms report that, although the release of business confidential information is forbidden by Korean law, in some instances, government officials do not sufficiently protect this proprietary information and the trade secrets were made available to Korean competitors or to their trade associations.

Because Korea has one of the highest levels of broadband Internet penetration in the world, the United States has urged the Korean government to develop an effective response to the challenges posed by the changing nature of digital copyright piracy. New legal tools should be adopted and existing laws should be amended to adapt to the changes brought about by technological innovation so that on-line piracy rates do not grow and affect the revenues of both domestic and foreign recording industries.