고려대학교 법과대학 이대희 Introduction to Korea’s Copyright Law Prof. of Law Korea University School of Law

고려대학교 법과대학 이대희  Intellectual Property ● IP: creations of the human mind (WIPO) ● IPR: A bundle of exclusive rights over creations of the mind, both artistic and commercial (wiki) - Copyright vs. Industrial Property ● Copyright law - Protects creative works ● Industrial property law - patent(invention)/ industrial design(aesthetic creations)/ trademark/ service mark/ lay-out designs of IC/ commercial names & designations/ geographical indications/ protection against unfair competition/ trade secret

고려대학교 법과대학 이대희  Intellectual Property ● Types of Subject Matters of IP (Convention Establishing WIPO 1967) 1.Literary, artistic and scientific works 2. Performances of performing artists, phonograms, and broadcasts 3. Inventions in all fields of human endeavor 4. Scientific discoveries 5. Industrial designs 6. Trademarks, service marks, and commercial names and designations 7. Protection against unfair competition - all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields

고려대학교 법과대학 이대희  International Copyright Norms & Korea 1. WIPO Convention: Berne Convention: Rome Convention: WCT: WPPT: TRIPS: Phonograms Convention: UCC (Universal Copyright Convention): KORUS FTA: negotiation compromised KOREA-EU FTA: expected to be ratified 2010

고려대학교 법과대학 이대희  Subject Matter (Berne) ● Artistic creation ● Literary and artistic works (Berne Convention) - every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science

고려대학교 법과대학 이대희  Subject Matter (1) ● Copyright Act Art Novels, poems, theses, lectures, speeches, plays and other literary works 2. Musical works 3. Theatrical works including dramas, dances, pantomimes, and other theatrical works 4. Paintings, calligraphic works, sculptures, prints, crafts, works of applied art, and other artistic works 5. The architecture, architectural models, plans, and other architectural works 6. Photographic works (including other works produced by similar methods) 7. Cinematographic works 8. Maps, charts, design drawings, sketches, models and other diagrammatic works 9. Computer program works

고려대학교 법과대학 이대희  Subject Matter (2) ● Computer Program - TRIPs Article 10 Computer Programs and Compilations of Data 1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971) - a series of instructions and commands used directly or indirectly in an apparatus having an information processing capacity, such as computer, etc., for the purpose of obtaining a certain result

고려대학교 법과대학 이대희  Subject Matter (3) ● Derivative works - A creation produced by means of translation, arrangement, alteration, dramatization, cinematization, etc. of an original work - be protected as an independent work ● Compilation works - compilations of a creative nature in terms of selection, arrangement or composition of its subject matters - be protected as an independent work

고려대학교 법과대학 이대희  Subject Matter (4) ● Database - Generally not in international treaty - Dual approach (Korea) (1) compilation work (2) sui generis protection - Directive on the Legal Protection of Databases (1996)

고려대학교 법과대학 이대희  Copyrightablity: Originality ● Requires an author to create independently and with a modest quantum of creativity ● A particular work owes its origin to the “ author ” ● The “ author ” contributed something more than a “ merely trivial ” variation, something recognizably “ his own ” ● Originality vs. Novelty - A patent right is infringed even if the third party independently created the invention - An author can claim copyright in a work as long as she has created it herself even if others created it previously

고려대학교 법과대학 이대희  Copyrightablity: Fixation ? ● Physical rendering of the fruits of intellectual activity ● Placing a work in some material form ● Berne Convention - not require a work to be fixed on a material object (2.2) ● US - Requirement for federal copyright protection ● Korea - Not required - Oral works protected: unprepared speeches, lectures, and debates, a piece of improvised music or drama not written in some material form, a jazz improvisation, sand castle, live broadcast over radio or television, or an ice sculpture

고려대학교 법과대학 이대희  Copyrightablity: Formality? ● Berne Convention §Art. 5(2) → The enjoyment and the exercise of these rights shall not be subject to any formality ● Formal requirement - publication - deposit of a copy of the works with a government office - copyright notice - copyright registration ● Korea: No formality for protection - The copyright shall commence from the time of completing a work regardless of the fulfillment of any procedure or formalities (10 II).

고려대학교 법과대학 이대희  Idea/ Expression Dichotomy ● Copyright protects the expression of an idea, but not the idea itself - extension: copyright protects the expression of a fact, not the fact itself → fact/expression dichotomy ● TRIPs Article 9 (Relation to the Berne Convention) 2.Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. ● Role played by the Dichotomy - Freedom of speech ● Korea - declares indirectly in the Act; Courts adopts

고려대학교 법과대학 이대희  Initial Ownership ● An individual who creates an work ● Joint work → created through the combined efforts of several persons ● Works made for hire → created as the result of an employment relationship → The employer is considered the author of the work, and is regarded as the initial owner of the copyright unless there has been another agreement → Corporation itself can be an author

고려대학교 법과대학 이대희 15 공표권 (11), 성명표시권 (12), 동일성유지권 (13) Performer Phonogram producer Broadcasting organization Database producer Author Neighboring RightsCopyright  Rights under Copyright Act

고려대학교 법과대학 이대희  Copyright - an author who creates a work of authorship - both economic & moral rights (bundle of rights) Economic rights rights of reproduction distribution public display public performance public transmission rental creation of derivative works Moral rights rights to make public claim authorship the integrity of a work

고려대학교 법과대학 이대희  Neighboring Rights Performer rights ofReproduction, broadcast Rental, public performance Electronic transmission claim authorship the integrity of a work Phonogram producer rights ofreproduction distribution rental electronic transmission Broadcasting organization rights ofreproduction simultaneous broadcasting Database producer rights ofreproduction distribution broadcasting electronic transmission of all or substantial portions of the DB

고려대학교 법과대학 이대희  Copyright & Neighboring Right ● Author - creates the work ● Performer/ phonogram producer/ broadcasting organization - Produce subject matter which, while not qualifying as works, which contain sufficient creativity or technical and organizational skill ● Copyright: economic & moral right - Economic right: derive financial reward from the use of works by others - Moral right: preserve the personal link between himself and the work

고려대학교 법과대학 이대희  Economic Right ● Exclusive right - Right to authorize or prohibit some actions ● Types of exclusive rights 1. reproduction 2. distribution 3. public performance 4. broadcasting 5. preparation of derivative works 6. Public transmission 7. Rental

고려대학교 법과대학 이대희  First Sale Doctrine & Rental Right ● First sale doctrine - Limitation to the right of distribution - Once a copyright owner relinquishes ownership (not transfer of copyright ownership) of a original or a particular copy, the new owner may distribute it without the copyright owner's permission ● Rental right - right to authorize or to prohibit the commercial rental to the public - TRIPs: computer programs/ producer and other right holders in phonogram/ cinematographic works (exception exists)

고려대학교 법과대학 이대희  Moral Right (1) ● Berne Convention §6bis(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. (1) Right of paternity: to claim authorship of the work (Berne) (2) Right of integrity: to object to any distortion or modification of the work or etc. which would be prejudicial to the author (Berne) (3) Right to Make Public : a right to publish a work which has not yet been made public (Korea)

고려대학교 법과대학 이대희  Moral Right (2) ● Derived from European continent ● Inalienable ● Shall be maintained after author’s death at least until the expiry of the economic rights (Berne)

고려대학교 법과대학 이대희  Copyright Term ● Basically, life plus 50 years (Korea/ Berne/ TRIPs) ● Why life plus 50 years? → protection of the author himself, and two more generation ● Extension of Copyright Term: life + 70 years → European Union (1993) → US: CTEA (1998) ● FTA → US-Singapore, US-Aus, US-Chile, US-Bahrain ● KORUS FTA - Life + 70 years

고려대학교 법과대학 이대희  Limitations to Copyright ● Why Limitations Are Necessary? → to accomplish the policy a goal of copyright ● What is a goal of copyright? → the development of culture by providing protection to copyright and by promoting fair exploitation of works of authorship ● To Achieve a Policy Goal of Copyright - need to balance the conflicting interests of (1) an author and (2) the public (1) interests of the author in securing economic gains → through the exercise of copyright in his works (2) interests of the public → through various limitations and exceptions

고려대학교 법과대학 이대희  Examples of Limitations (Korea) ● Reproduction for Court and Other Proceedings ● Reproduction at Educational Institutions ● Reproduction at Public Libraries ● Reproduction for Examinations and Tests ● Reproduction for the Blind ● Non-profit Public Performance or Broadcasting ● Ephemeral Recording by Broadcasting organization ● Reporting of Current Events ● Quotation of Works ● Private Copying ● Reproduction by Libraries ● Reproduction for Exams ● Reproduction for the Blind ● Ephemeral Sound or Visual Recordings by Broadcasting Organizations ● Exhibition or Reproduction of Works of Art

고려대학교 법과대학 이대희  Three-step Test ● Limitation to limitations to copyright ● Berne Convention Art. 9(2) - It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. ● TRIPs Art Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

고려대학교 법과대학 이대희  Compulsory License ● Non-voluntary license - Limitation to copyright: allow use of works without the authorization of copyright owner - Need to award compensation to copyright owner ● Korea (i) Where Copyright Owner Cannot Be Found (ii) Broadcasting of Works (iii) Making Sound Recordings

고려대학교 법과대학 이대희  Infringement ● Infringement: when a third party violates the copyright owner's exclusive rights, moral rights, or neighboring rights ● Elements of Infringement (Courts) (i) Intention to rely on the original (ii) substantial similarity

고려대학교 법과대학 이대희  Remedies ● Civil & criminal remedies ● Civil remedies - injunction - Damages ● Criminal remedies - Fine & imprisonment - Up to $ 45,000 fine & 5-year imprisonment (Korea) ● Enforcement at the border - Copyright owner, or competent authority ex officio, may initiate procedures to suspend release of pirated copyright goods into free circulations

고려대학교 법과대학 이대희  Related rights (1) ● Neighboring rights ● Performer/ phonogram producer/ broadcasting organization ● Rome Convention/ WPPT ● Term - 20 years after fixation was made or performance took place & broadcast took place-for broadcasts (R) - FTA: 70 years

고려대학교 법과대학 이대희  Related rights (2) ● Performer (1) Economic right (i) Broadcasting and the communication to the public (R) - Broadcasting: usually in the form of equitable remuneration rather than a right to prevent (ii) Fixation unfixed performance (R) (iii) Reproduction of a fixation of performance (R) (iv) Distribution (W) (v) Rental (W) (vi) Making available of performance to the public (W) (2) Moral right (W) (i) Right of paternity (ii) Right of integrity

고려대학교 법과대학 이대희  Related rights (3) ● Phonogram producer - Reproduction of phonograms (R) - Equitable remuneration for broadcasting & communication to the public (R) - Distribution (W) - Rental (W) - Making available of phonograms to the public (W) ● Broadcasting organization (i) rebroadcasting of their broadcasts; (ii) the fixation of their broadcasts; (iii) the reproduction (iv) communication to the public

고려대학교 법과대학 이대희  Digital & Copyright ● Technological measure ● Internet service provider ● Copyright management information ●

고려대학교 법과대학 이대희 34 Access Control Copy Control Ban on Circumvention DMCA, EU KORUS FTA EU Trafficking Ban DMCA, EU KOREA FTA DMCA, EU, Korea  Digital & Copyright: TPM

고려대학교 법과대학 이대희 Korea University Dae-Hee Lee35 ISP Copyright Owner Subscriber Direct infringer What Liability?  Relations with Internet Service Provider

고려대학교 법과대학 이대희  Digital & Copyright: ISP 1. Reducing or immunization of liability (1) reducing or immunization of the liability of the OSP when it stops the reproduction or electronic transmission of the work on or through its system knowing that copyright is infringed by the reproduction or electronic transmission (2) immunization when the OSP cannot stop on technological reason → OSP’s need to follow the notice-and-takedown process

고려대학교 법과대학 이대희  Digital & Copyright: ISP 2. Notice & takedown procedure (i) Copyright owners → require the OSP to stop the reproduction or electronic transmission of infringing materials by proving the infringement (ii) OSP must immediately stop the reproduction or electronic transmission, and give a notice to the person who directs the reproduction or electronic transmission (iii) when the reproduction or electronic transmission is legitimate, the OSP must resume the reproduction or electronic transmission and notify the copyright owner of it → OSP not liable for stopping the reproduction or electronic transmission, or for copyright infringement

고려대학교 법과대학 이대희  Digital & Copyright: ISP 3. Special Types of Online Service Providers - special types of online service providers (whose main purpose is to enable different people to interactively transmit works, etc. among themselves by using computers - shall take necessary measures such as technological measures intercepting illegal interactive transmission of works, etc. upon the requests of rights holders

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