RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q/KOR/1
IP/Q2/KOR/1
IP/Q3/KOR/1
IP/Q4/KOR/1
27 September 2000
(00-3911)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal: English
REVIEW OF LEGISLATION
REPUBLIC OF KOREA 1
The present document reproduces the introductory statement made by the delegation of the
Republic of Korea, the questions put to it and the responses given in connection with the review of
legislation undertaken at the Council's meeting of 26-29 June 2000.2
_______________
I. INTRODUCTORY STATEMENT
My delegation is pleased to have this opportunity to have Korean IPR-related laws and
regulations reviewed in the TRIPS Council.  We ha ve received a number of questions from several
Members in regard of our regime of intellectual property protection.  My delegation thanks them all
for their interest.  All these questions were stimulating, and valuable, because we could review our
laws and regulations from a different perspective.  In spite of the limited time available to us, partly
due to the delayed delivery of the questions to us, we did our best to supply as informed responses as
possible.  If there is any further information needed, my, delegation will be happy to provide them
through a follow-up question and answer process.
My delegation believes that Korea's current intellectual property protection system is in full
conformity with provisions of the TRIPS Agreement and provides more extensive protection than is
required by the TRIPS Agreement in certain areas.  The Korean intellectual property legislation did
not need to be revised substantially to adopt the provisions of the TRIPS Agreement, since the Korean
government had already had a high level of the IPR protection regime in place.  Further to meeting itsobligations under the TRIPS Agreement, the Korean Government has been upgrading its IPR
protection system in an effort to keep up with ne w developments of the intellectual property rights,
including new emerging IPRs.
Certainly, it is not my delegation's intention to explain about all the detailed aspects of
Korea's IPR regime.  In this introductory statement, my delegation will confine itself to a few salient
points of its legal system in each field of intellectual property rights, with a particular reference to its
legislative history, to give Members a broad perspective.
                                                     
1 As regards laws and regulations notified by the Republic of Korea under Article 63.2 of the
Agreement, reference is made to documents IP/N/1 /KOR/1, IP/N/1/KOR/C/1 and 2, IP/N/1/KOR /D/1,
IP/N/1/KOR/L/1,  IP/N/1/KOR/P/1 and IP/N /1/KOR/U/1 and IP/N/6/KOR/1 and Corr.1.
2 The minutes of this meeting have been circulated as document IP/C/M/27.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 2
A. COPYRIGHT AND RELATED RIGHTS
Main laws concerning copyright in Korea are the Copyright Act (IP/N/1/KOR/C/1), which
encompasses copyright as well as its neighbouring rights, and the Computer Program Protection Act
(IP/N/1/KOR/C/2), which protects co mputer programs as literal works.
The Copyright Act was first enacted in 1957.  Since then it has continued to promote the
legitimate use of works and foster cultural development in Korea.  The Copyright Act went through
several amendments.  A major amendment was made in 1995 to better meet Korea's obligations under
the TRIPS Agreement.  This amendment was intended, inter alia, to provide the retroactive protection
for foreign works, the rental rights for phonograms, and the 50-year term of the protection for
performers and producers of phonogram.  This amendment also began to protect a database explicitlyand abolished a compulsory license of the translatio n right.  Furthermore, the recent amendment to the
Copyright Act, which is scheduled to become effective 1 July 2000, provides the exclusive right of
interactive transmission.
The Computer Program Protection Act, distinctive from the Copyright Act, was enacted in
1986.  In the view of Korea, computer programs require different means of protection from other
conventional copyrighted works, in that they are technical in nature and are digitized in form.  The
Computer Program Protection Act has been revised several times since its enactment to comply with
the TRIPS Agreement and other international copyright program conventions.  Such revisions include
the introduction of the rental right of a comput er program, recognition of the 50-year term of
protection for program copyright, increased level of punishment, and extended coverage of protection
to a program transmitted through wireless and wire communication networks and copyright
management information.
The Computer Program Protection Act has been recently amended to prohibit the
circumvention of technical protection measure, empow er officials of the relevant Ministry to crack
down on piracy and provide for heavier punishment for repeated infringers.
B. T
RADEMARKS AND GEOGRAPHICAL INDICATIONS
The Trade Marks Act (IP/N/KOR/T/1), which is based on the first-to-file system, was first
introduced in 1949.  This Act was amended in 1995 and 1997 to meet the requirements under the
TRIPS Agreement.  In 1998, further amendment was made to protect three-dimensional and colourtrademarks.  The revised Trade Marks Act simplified the application procedures as well as renewal
and examination processes.
Another amendment is currently under preparation to harmonize it with the provisions of the
Trademark Law Treaty (TLT) and the Madrid Protocol Concerning the International Registration ofMarks, which Korea will join in the near future.
Although Korea already meets its obligations under the relevant provisions of the
TRIPS Agreement, protection of trademarks will be even more strengthened when the Unfair
Competition Prevention and Trade Secret Protection Act is amended.  The amendment, which iscurrently under preparation, will prohibit the act of diluting well-known trademarks, with a view to
strengthening the protection of well-known marks in line with the 1999 WIPO Joint Recommendation
Concerning the Provisions on the Protection of Well-Known Marks.
Geographical indications are protected in Korea as required by the TRIPS Agreement.
Various laws and regulations, including the Unfair Competition Prevention and Trade Secret
Protection Act, constitute legal means for such purpose.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 3
C. INDUSTRIAL DESIGNS
The Design Act was first enacted in 1961.  This Act provides protection for designs with short
life cycles, such as textiles, through simplified examination process for registration, while providing
means to prevent the possible abuse of this simplified examination.  In Korea, designs are protectedfor 15 years, which is longer than required by the TRIPS Agreement.
D. P
ATENTS
Korea's Patent Act was first enacted in 1946.  In 1995, the Patent Act was revised to conform
to the TRIPS Agreement by establishing a 20-year term of protection for patents from the filing date
of application.  In line with the worldwide tre nd to enhance user-friendliness in the registration
process, the Korean government revised the Patent Act in 1997 to introduce an on-line applicationsystem, which was installed in January 1999.  The most recent amendment of the Patent Act was
made in 1998 to increase the eligibility of pharmaceutical and agricultural chemical products that are
subject to official testing requirements to enjoy the extension of the patent term.
In the meantime, in response to recent developments of new technologies, Korean Industrial
Property Office (KIPO) has upgraded the relevant examination guidelines, in particular in the areas of
biological and internet-based technologies.
Korea has also keen interests in harmonizing the national legislation in the field of patents as
a member of international treaties such as the Paris Convention, the Patent Cooperation Treaty, andthe Budapest Treaty for the Deposit of Microorganisms.  Furthermore, Korea endeavours to contribute
to worldwide efforts to streamline the procedures  for obtaining patents in line with the recently
concluded Patent Law Treaty.
E. L
AYOUT -DESIGNS OF INTEGRATED CIRCUITS
Under the Act on Layout-Designs of Semi-conduc tor Integrated Circuits (IP/N/1/KOR/L/1)
which was enacted in 1992, semi-conductor integrated circuits are fully protected in Korea.
F. PROTECTION OF UNDISCLOSED INFORMATION , AND CONTROL OF ANTI-COMPETITIVE
PRACTICES IN CONTRACTUAL LICENCES
Undisclosed information is protected by the Unfair Competition Prevention and Trade Secrets
Protection Act (IP/N/1/KOR/U/1) in line with Part  11, Section 7 of the TRIPS Agreement.  This Act
was initially enacted in 1961 for the purpose of incorporating Article 10(2) of the Paris Convention.
In 1991, new provisions concerning the protection of trade secrets were added to this Act.
In addition, under the Pharmaceutical Affair Act and Agrochemicals Control Act, undisclosed
tests or other data submitted to government authorities for marketing approval of pharmaceutical oragricultural chemical products are protected against disclosure to the public or unfair commercial use.
The Monopoly Regulation and Fair Trade Act, enacted in 1980, regulates an abuse of IPR
having an adverse effect on competition in the relevant market.
G. E
NFORCEMENT
Given that information on the enforcement aspects of Korea's IPR protection is contained in
Korea's responses to the Checklist of Issues on Enforcement (IP/N/6/KOR/1), only a few remarks are
warranted here.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 4
First of all, the enforcement regime currently in  place in Korea is readily available for right
holders and this system is operated in such a manner as to guarantee expeditious remedies not only to
prevent but also to deter infringements.  Korea believes that this regime provides fair and equitable
procedures for this purpose.
Secondly, Korea's criminal procedures and penalties are applied to criminal acts that violate
the protection of all different kinds of IPRs, which is more than the minimum standards required by
the TRIPS Agreement.  Particularly, the level of punis hment in the case of the infringement of IPRs is
normally higher than that for other criminal acts of similar gravity.  Furthermore, the legislated level
of punishment has been gradually increased.
Thirdly, in light of the importance of the enha nced flow of information on IPR infringements
in the context of the border measure, the Korean Customs Service puts an emphasis on sharing
information with other government agencies, including  the prosecutor's office, as well as the business
community.
H. CONCLUDING REMARK
This concludes my delegation's brief on Korea's IPR system.  While thanking Members for
interests shown in the Korean IPR legislation, my  delegation is looking forward to a constructive
review exercise today.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 5
II. RESPONSES TO QUESTIONS POSED BY AUSTRALIA 3
A. COPYRIGHT AND RELATED RIGHTS
1. Please advise on the effective scope of exceptions to copyright under the law of the
Republic of Korea allowing use of copyright material by third parties for permitted purposes
(such as research, education, fair use or fair  dealing), in particular, the interpretations of
"reasonable limit" and "compatible with fair practice" under Article 25 of the Copyright Act.
Are there any significant judicial decisions with  bearing on this issue?  Are there any specific
rules or findings concerning exceptions or li mitations to copyright protection of computer
software?
Articles 23 through 33 of the Copyright Ac t and Article 12.1 of the Computer Programs
Protection Act enumerate specific cases where limitations and exceptions to the exclusive rights
would apply, as in other civil laws system.  By providing specific cases that meet the strict criteria for
the limitations and exceptions in accordance with Article 13 of the TRIPS Agreement, these Articles
avoid any possibility of arbitrary interpretation.
The courts interpreted the requirement of a "reasonable limit" and "compatible with fair
practice" as meaning, inter alia , that the use of other published works should be made to such an
extent so as not to replace the market demand of su ch works, and that quotations from other published
works should be made in such a manner so as not to cause readers to become confused over thesource, which would be in contradiction with the principle of good faith.  (See, e.g., case No. 94
Kahap 6025, 29 July 1994;  case No. 95 Kahap 34-38, 27 September 1995).
Follow-up questions:
A. Article 23 of the Copyright Act provides a statutory licence in relation to copyright
works broadcast or reproduced for the purposes of school education.  What criteria are used to
determine what is necessary for the purposes of school education?
Article 23 is composed of two parts.  Paragraph 1 refers to the reproduction of textbook
materials that are needed for teaching in primary and secondary schools.  Colleges and universities
cannot rely on paragraph 1 to reproduce works without the authority of the right holders.  On the otherhand, paragraph 2 refers to the reproduction and broadcasting of copyrighted materials by educational
institutions, the scope of which is somewhat broader than the one prescribed in paragraph 1.
Paragraph 2 is meant to allow the reproduction and broadcasting of a work for the purpose of
facilitating educational activities by teachers or instructors in the classroom.
There is no statutory criterion for determining the necessity of reproducing works for school
education.  However, it is understood that the requirement of necessity prohibits educational
institutions from abusing this exemption clause without justifiable reasons.  Specific rulings on this
matter should be rendered by the court on a case-by-case basis.
B. Article 26(2) of the Copyright Act provides an exception to rights for the public
performance and broadcasting of commercial pho nograms or cinematographic works, except in
the cases as prescribed by the Presidential Decre e.  Article 2(1) of the Enforcement Decree of
the Copyright Act prescribes "public performances in merrymaking barrooms".  Article 2(2) of
                                                     
3 Note by the Korean delegation:  Although some of the questions raised by Australia address issues
that fall outside of the scope of the TRIPS review exerci se, answers are provided to the extent possible for the
sake of transparency.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 6
the Enforcement Decree prescribes public performa nces in businesses for the appreciation of
musical or cinematographic works.  Does the prescription in the Enforcement Decree include
establishments where karaoke is a normal part of the entertainment, or discotheques and
nightclubs?  Does the exception in Article 26(2)  include restaurants, or any other businesses?
Commercial phonograms are not used in karaokes which normally use karaoke-dedicated IC
chips or CD-ROMs.  The karaoke owners are requ ired to pay royalties to holders of the public
performance right as envisaged in Article 17 of the Copyright Act.
Article 2(2) of the Enforcement Decree of the Copyright Act enumerates certain business
establishments to which the exemption clause of Article 26(2) is not applied.  They include, inaddition to merrymaking barrooms, restaurants where the appreciation of commercial phonograms or
cinematographic works through special facilities dedicated to that purpose constitutes a major part of
their business, and other businesses such as horse race courses, golf courses, ski resorts, aerobics
centres, dancing halls, passenger flights, passenger ships, passenger trains, hotels, casinos, department
stores and shopping centres.  Discotheques and nightclubs are good examples of the business
establishments enumerated in Article 2(2) of the Decree.
C. Article 28 of the Copyright Act provides  an exception for reproductions made in
libraries.  Does this exception apply to repro ductions made of entire books?  Are there any
record-keeping requirements in relation to the making of reproductions of copies for inter-
library requests under Article 28(3)?
The reproduction of an entire book is permitted only in the following two cases:
(i) where it is necessary for libraries to make a reproduction for archiving purposes; and(ii) where there is a request from other libraries for the reproduction of an out-of-print or
unavailable work.
There is no provision in the Copyright Act that requires record-keeping in relation to making
of copies for inter-library requests.
D. Article 47 of the Copyright Act provides a statutory licence for the use of works where
the copyright owner cannot be identified or traced .  What steps must be taken to identify and
trace the owner before the statutory licence can be relied upon?  Are there any particular steps
that need to be taken when the copyright owner is based abroad?  Is it possible to determine
how many applications are made under Article 47 (in broad figures), and what proportionrelate to foreign copyrights?
The compulsory licence system operates under strict procedural conditions that are aimed at
ensuring that the applicant has made considerable ef forts to identify and trace the right holder.  For
the specific procedures, please refer to Korea's response to question 2 posed by the United States(below).  It is to be noted further that in order to meet the requirements for the compulsory licence the
applicant should demonstrate, inter alia , that the identity or whereabouts of the right holder could not
be established in spite of considerable efforts.  The meaning of the term, "considerable efforts" is
elaborated in Article 6 of the recently amended Enforcement Decree which took effect 27 July, 2000.
Considerable efforts are deemed to be made when at least one month has passed since an inquiry ofthe name and/or address of the right holder was se nt to the copyright management service or other
related persons, or when ten days have passed since an inquiry was posted in a nationwide newspaper
or an information network.  No further proce dures are required for works of foreign origin.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 7
Since 1986 when the compulsory licence provisions were first introduced, only two
compulsory licences have been granted, one of which was related to a foreign work.
E. Articles 23, 47, 48 and 50 of the Copyright Act provide various statutory licences.  What
criteria are used to determine the sum of compen sation payable to either the copyright owner or
the Minister of Culture and Tourism, and for what purposes is the compensation used?   Is there
a mechanism for appealing th e amount of compensation?
The basic criteria for determining the sum of compensation is based on a principle of "just
compensation" as stipulated in Article 23(3) of the Constitution.  Specifically, the compensation
provided for in Article 23 of the Copyright Act is determined by taking into consideration the special
nature of a "textbook" and the value of the works re-used in the textbook.  The compensation provided
for in Articles 47, 48 and 50 of the Copyright Act is determined by considering the value that could be
attributed to the copyrighted work if it were placed in the market.
In a case where the payment of compensation cannot be made directly to the right holder, it
should be deposited at a designated depositary with a notice to the person who is entitled to receive
the deposit.  When the whereabouts of the right holder cannot be established within a certain period of
time, the compensation falls to the State treasury.
If the copyright holder is dissatisfied with the amount of compensation, he may file an
administrative suit against the government.
F. Article 12.1 of the Computer Programs Prot ection Act provides exceptions for the
reproduction and use of computer programs in a number of instances.  Do these exceptions
refer to the program itself in digital form, a nd do the exceptions extend to computer code able
to be perceived and understood by people?  Is it possible to assess how much copying is
undertaken under these provisions, and are there any decided or pending cases on the
interpretation of Article 12.1?  To what extent  is Article 12.1 used in relation to foreign
copyrights?
These exceptions are applicable not only to the program itself in digital form but also
computer codes that can be perceived and underst ood by people.  Article 2(1) of the Computer
Program Protection Act defines "programs" as creative works expressed as a series of instructions and
commands used directly or indirectly  in a computer for the purpose of obtaining a certain result.  It is,
therefore, interpreted that both the source code (instructions and commands used directly) and objectcode (instructions and commands used indirectly) are included in the concept of a program.
There is no case on how many copies can be made under this provision.  However, it is
interpreted that reproduction is allowed to the minimum extent, as long as it does not infringe
seriously the economic interests of the right holder.  This condition is applied to all copyright works,
regardless of its foreign or domestic origin.
G. Article 12(4) of the Computer Programs Protection Act provides an exception allowing
reproduction and use of computer programs for individual not-for-profit purposes in a limited
place like a home.   Can a complete computer program, such as a computer game or word
processing application software, be freely reproduced at home for use by the individual?
An exception in the case of private use is allowed, in light of the difficulty involved in
detecting the otherwise illegal use of the computer program copyright.  This exception is also adopted
in several other countries.  The sale or distribution of a computer program, reproduced for private use,
is not regarded as such.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 8
H. Article 17 provides an exception in relation to the use of a computer program where the
copyright owner cannot be identified or traced.  What steps must be taken to identify and trace
the owner before the statutory licence can be relied upon?  Is it possible to determine how many
applications are made under Article 17 (in broad figures), and what proportion relates toforeign copyrights?  How is the compensation determined, and for what purposes is it used?
Articles 3 through 6 and Article 10 of the Enforcement Decree of the Computer Program
Protection Act provide concrete procedures for the application and approval of program use in cases
where the copyright owner cannot be identified or traced.  Any person desiring to obtain approval to
use a program should submit to the Ministry of Information and Communication a written application
for such approval and provide evidence demonstrat ing his failed efforts to identify and trace the
program copyright holder.  This application is put on public notice for more than 30 days, in order to
give an opportunity to the real copyright holder to claim his right.  The Ministry decides on the
amount of compensation on the basis of the review conducted by the Program Deliberation and
Mediation Committee.  The compensation is then deposited until the real copyright holder claims it.
Until now, there has been no case where such an application has been made.
2. To what extent does current copyright protection in the Republic of Korea cover the use
and dissemination of copyright works on digital networks such as the Internet?  Are there any
specific provisions in copyright law concerning the digital on-line environment, and are there
any significant judicial or administrative  decisions with bearing on this issue?
Under existing laws, there is no specific regulation concerning the copyright protection of
digital networks.  However, judicial precedents have established that the existing Copyright Act also
extends copyright protection to the on-line digital environment (See, e.g., case No. 98 Kahap 1699,23 September 1998.  In this case, the District Court ruled that an on-line database is protected.)
The new Amendment to the Copyright Act, which will take effect on 1 July 2000, contains
the new exclusive right of interactive transmission, which incorporates the right of communication to
the public as stipulated in Article 8 of the WIPO Copyright Treaty.
B. T
RADEMARKS
3. Are there any specific provisions in the Republ ic of Korea's laws and regulations, or any
significant judicial decisions, with bearing on the use of trademarks or geographical indications
on digital networks such as the Internet?  Are there any relevant decisions or other legal
provisions concerning the relationship between  Internet domain names and trademarks or
geographical indications?
Presently, there are no special provisions under the laws and regulations of Korea that pertain
to the use of trademarks or geographical indications on digital networks such as the Internet.  Nor are
there any special provisions that address the relationship between Internet domain names and
trademarks or geographical indications.
However, in a recent judicial case (case No. 99 Kahap 41812, 8 October 1999) involving the
use of domain names on the Internet, a district court held that the use of a well-known trade name on
the Internet by a non-related party was in violation of the Unfair Competition Prevention and Trade
Secret Protection Act.
4. Could you please explain the meaning of th e Phrase 'conspicuous geographical name' in
Article 6(iv) of the Trade Marks Act?  Would a geographical indication be registerable as a
trademark or part thereof under Korean Law?IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 9
A "conspicuous geographical name", as referred to in Article 6(1)(iv) of the Trade Marks Act
means a geographical name that is widely known to the general public:  i.e., the name of a country;
the name of a domestic province, city, county or district;  the name of a well-known foreign capitalcity, large city or province;  or the name of well-known domestic or foreign historic sites, tourist sites,
commercial areas, etc.  A trademark that consists merely of a "conspicuous geographical name" is not
registerable as a trademark.
It should be noted that for the improved protection of geographical indications for wines and
spirits, an application for the registration of any trademark that contains or consists of the
geographical indications of wines and spirits that originate in WTO Members is to be rejected underArticle 7(1)(xiv) of the Trade Marks Act.
C. I
NDUSTRIAL DESIGNS
5. What amounts to "industrial applicability" for the purposes of section 5(1) of the Design
Act and "commercially or industrially working articles" for the purposes of section 63?
"Industrial applicability" means that the industrial design can be reproduced more than once,
is intended for mass production, and can be obt ained through currently available technology.
"Commercially or industrially working articles" means the working of articles (e.g.
production, use, transfer, loan, importation, etc.) for business purposes.  It should be noted that an act
of personal, family-oriented, non-business oriented working does not fall within the purview of this
concept.
6. Section 6(ii) provides that designs which are "liable to contravene public order or
morality" are not registerable.  Could you please  explain the scope of this exception and provide
examples of the type of design that  would fall within this exception?
The following industrial designs are examples of industrial designs that are "liable to
contravene public order or morality":
(i) industrial designs that incorporate the portrait of any head of state or any other similar
designs;
(ii) industrial designs that desecrate any country or its nationals;(iii) industrial designs that portray vulgarism, hatred and other designs which are not
socially acceptable (e.g., obscenities, promotion of suicide, etc.);  and
(iv) industrial designs that go against the dignity of human beings.
7. Section 44(i) provides that the exclusive de sign right does not extend to use of the
registered design for the purpose of "research or experiment".  Is any further information
available about the effective scope of this exception?
The research or experiment in this regard is limited to those conducted for non-business
purposes.  Such an exception to the exclusive design right is allowed for the sake of promotingindustrial progress and development.
8. Are industrial designs also protected by copyright law in Korea?  At what point (if any)
are any rights to copyright protection lost?IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 10
Article 4(1)(iv) of the Copyright Act includes works of applied art as a subject of copyright
protection.  However, a ruling by the Supreme Court (case No. 94 do 3266, 23 February 1996) has
made it clear that works of applied arts, when produced for the purpose of mass industrial production,are not protected by the Copyright Act but protected by the Design Act.  The Amendment to the
Copyright Act, which will take effect on 1 July 2000, codified the intent of this ruling by stipulating
in Article 2(11-2) that applied artistic works, including designs, are protected as copyright works
when they can be identified separately from the utilitarian aspect of the article for which they are
used.
D. P
ATENTS
9.  Are the following subjects matters patentable:
- plants and animals;- plant and animal varieties;- diagnostic, therapeutic and surgical methods for the treatment of humans and
animals?
Animals are patentable when the requirements of the Patent Act (i.e., novelty, involvement of
inventive steps and capability of industrial application) and the requirement of being reproducible are
satisfied.
A plant variety that reproduces asexually is patentable according to Article 31 of the Patent
Act.  Furthermore, plant varieties may also be protected by the Seed Industry Act, which is in linewith the sui generis  system stipulated in Article 27(3) of the TRIPS Agreement.
Diagnostic, therapeutic and surgical methods for the treatment of humans are not patentable
while such methods for the treatment of animals are patentable.
10.  What kind of inventions have in practice been considered unpatentable under
Article 32?  What legal or administrative guidelines are available in relation to inventions liableto contravene public order or morality or to injure public health?
Examples of inventions that are liable to contravene public order or morality or to injure
public health are those which are:
(i) liable to destroy the eco-system;
(ii) liable to contaminate the environment;  and(iii) liable to jeopardize the life of a human being.Administrative guidelines for identifying unpatentable inventions are in place for each
industry sector.
11. Please outline the scope of the limitation on  the patent right for the purpose of research
and experiment as provided for in Article 96?  What types of acts would fall within this
limitation?  Are there any judicial findings or other legal guidance on the application of this
provision in practice?IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 11
A third party who engages in research and experiment may work a patented invention without
infringing the patent right, as long as such working is not for commercial or industrial purposes.
When, for example, a third party works a patent inve ntion in order to verify the technological effects
of the patented invention, he does not violate the patent rights of the owner.
There are no judicial or administrative decisions on this issue.
Follow-up question:
If possible, please provide further detail of the scope and meaning of "commercial and
industrial purposes" in relation to the research and experiment exception.
Working for "commercial and industrial purpos es" means any act, which is prescribed in
Article 2(iii) of the Patent Act, that is done for "profit-making purpose".
"Working" is defined by Article 2(iii) of the Patent Act as follows:(i) in the case of an invention of a product, any acts of manufacturing, using, assigning,
leasing, importing, or offering for assigning or leasing the product; and
(ii) in the case of an invention of a process, acts of using the process; and in particular, in
the case of an invention of a process of manufacturing a product, acts of using, assigning,
leasing, importing or offering for assigning or leasing the product manufactured by the
process, in addition to the acts of using the process.
12.  In which circumstances (if any) is use wi thout the authorization of the patent holder
permitted, including use by or authorized by the government?  In how many cases have
compulsory licences or permits for government use been granted?  Are there any reported
judicial or administrative decisions on this issue?
In Korea, a compulsory licence can be granted through adjudication and a trial.  As to date,
there has not been any case where a compulsory licence has been granted or where such permission
was granted for government use.  Accordingly, there are no reported judicial or administrativedecisions on this issue.
(i)  Adjudication.In Korea, when a patented invention falls under any of the following cases, a compulsory
licence to work a patented invention may be granted by KIPO upon request (Article 107 of the
Patent Act):
- where the patented invention has not been  worked for more than three consecutive
years in Korea, except in the case of natural disaster, unavoidable circumstances orother justifiable reasons as prescribed by the Enforcement Decree of the Patent Act;
- where the patented invention has not continuously been worked commercially on a
substantial scale in Korea for more than three years;
- where the working of a patented invention is necessary for a public non-commercial
use;IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 12
- where a judicial or an administrative process determines that the working of the
patented invention is necessary to remedy a practice that is deemed to be
anti-competitive;
- where a patented invention is necessary for national defense in the event of war or
other similar emergencies (Article 106 of the Patents Act);  or
- with respect to semi-conductor technology, a request for adjudication may be made
only in cases where the working of the patented invention is necessary for a public
non-commercial use, or where such working is necessary to remedy a practice that is
deemed to be anti-competitive.
In the first and second cases, consultations with the patentee or exclusive licensee are
required.
(ii) Trial (Article 138 of the Patent Act).Under Article 98, if a patentee, exclusive licensee or non-exclusive licensee wishes to work
his patented invention, but his working would infr inge another person's earlier patented invention, he
must obtain the permission of the other party c oncerned before working his patented invention.
However, if the owner of the earlier patent refuses to grant permission, without justifiable reasons fordoing so, or if it is not possible to obtain his permission, the patentee, exclusive licensee or non-
exclusive licensee may request a trial to obtain the non-exclusive licence needed to work his
invention.  At trial, the licence is granted only where the application for a non-exclusive licence
constitutes a substantial technical advance, in comparison with the earlier patented invention.
Under Article 138(3), the owner of an earl ier patented invention, who has granted a
non-exclusive licence, may also request a trial to obtain a non-exclusive licence to work the patented
invention of the licensee who has been granted the non-exclusive licence, if the latter refuses to give
permission to do so or if it is not possible to obtain such permission.
13. What provisions are there in Korean law concerning the burden of proof in civil
proceedings concerning infringement of a process patent?
For a process patent, Article 129 of the Patent Act stipulates the following:
"Article 129(Presumption of the Patented Process).
In the case of a patent for an invention of a process to manufacture a product, where such a
product was not publicly known in Korea prior to the filing of the patent application concerned, any
identical product shall be presumed to have been manufactured by that patented process."
This provision complies with Article 34.1 of the TRIPS Agreement.
E. P
ROTECTION OF UNDISCLOSED INFORMATION
14.  How is the "independent economic value" of information as provided in the definition
of "trade secrets" in Article 2 of the Unfair Competition Prevention and Trade Secret
Protection Act assessed?
In determining "trade secrets", it is not sufficient that the holder of information deems such
information to be "trade secrets", but rather, such information should hold a certain "independent
economic value."  The "independent economic value" of the information should be derived from theIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 13
confidential nature of the information.  Furthermor e, since such information is not generally known
among or readily accessible to persons within the circles that normally deal with that kind of
information, it holds an actual or potential economic value.  However, it should be noted, that this
does not in anyway mean that such information needs to be the subject of an economic transaction.
15.  To what extent does the law concerning protection of undisclosed information apply to
actions by or on behalf of the government, in cluding data submitted to government agencies in
accordance with Article 39.3 of the TRIPS Agreement?
Data submitted to the government authorities for the marketing approval of pharmaceutical or
agricultural chemical products are prohibited from being disclosed to the public when the person whosubmitted such data requests the protection of the data.  However, when authorities see the need to
disclose the data to the public, the data may be disclosed, which is in conformity with Article 39(3) of
the TRIPS Agreement (Article 27 of the Agrochemicals Control Act and Article 72-9 of the
Pharmaceutical Affairs Act).
When there is a violation of these provisions, a penalty of imprisonment for up to three years
or a fine not exceeding ten million won (for pharmaceutical products) or 15 million won (for
agrochemical products) is imposed under Article 75 of the Pharmaceutical Affairs Act and Article 32
of the Agrochemicals Control Act.
F. C
ONTROL OF ANTI-COMPETITIVE PRACTICES
16.  Does Korean law provide for any specific measures concerning practices that constitute
an abuse of intellectual property rights?  Are there any applicable court decisions or other
administrative guidelines?
Article 59 of the Monopoly Regulation and Fair Trade Act stipulates that this Act shall not
apply to any acts which are deemed as an exercise of rights under the Copyright Act, the Patent Act,
the Utility Model Act, the Design Act, or the Trade Marks Act.
However, the application of this Article is conf ined to the legitimate exercise of intellectual
property rights.  If the exercise of an intellectual property right falls within the ambit of an undue
exercise or abuse of intellectual property rights, thereby restricting competition, the Korea Fair TradeCommission can apply Article 23 and/or other related provisions of the Monopoly Regulation and
Fair Trade Act.  To be more specific, it can issue an injunction, order the public announcement of the
violation, or cancellation or amendment of related contracts and impose a surcharge.
There have been several cases where the Korea Fair Trade Commission has taken such
measures.  For example, the copyright contract between "Mincom" and Applied Learning
International Inc. of America had a clause stipulating that "Mincom cannot establish sub-agents
without a written agreement of Applied Learning Inte rnational".  It was deemed as an unfair trade
practice and the Korea Fair Trade Commission ordered a correction of that clause.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 14
III. RESPONSES TO QUESTIONS POSED BY CANADA
1.  What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61?
Article 93 of the Trade Marks and Article 97(5) of the Copyright Act provide for the
punishment for an act of infringing intentionally on trademark rights or copyrights.  In the case of
copyright, a complaint from the right holder is required for the prosecution of infringement cases.
The right holder can demand the prevention or suspension of infringing acts, claim
compensation for damages, claim the return of unlawfully obtained benefits, and/or demand a
recovery of his honour or reputation (Articles 91, 93 and 95 of the Copyright Act, Articles 65, 67 and69 of the Trade Marks Act, and Articles 750 and 741 of the Civil Code).
2. What protection does your copyright legislation afford to foreign works?
Article 3(1) of the Copyright Act stipulates that the copyright of works of foreigners, as
referred to in the question, is protected in conformity with the treaties to which Korea has acceded or
ratified, including the Berne Convention and the TRIPS Agreement.  Article 61 of the Copyright Act
also stipulates that the neighbouring rights of fo reigners are protected in conformity with the
international treaties to which Korea has acceded or ratified, including the TRIPS Agreement.
The Korean Copyright Act does not provide different treatment to foreign works, in
comparison to Korean or third foreign works in light of the minimum protection requirement of the
TRIPS Agreement which the Korean Copyright Act incorporates, and thus provides national treatment
and most-favoured-nation treatment.
However, there are some exceptions of the national treatment and most-favoured-nation
treatment.  According to Article 3(3) of the Copyright Act that contains the principle of reciprocity,
the protection of foreigners' works may be restricted, when the country of origin does not protect the
works of Korean nationals.  However, minimum protection, as provided under the treaties to which
Korea has acceded or ratified, is provided.
Article 65(1) of the Copyright Act provides that the payment of reasonable compensation for
broadcasting commercial phonograms, in which performances are recorded, is not required when the
performers are foreigners.  This exception complies with Article 16(1) of the Rome Convention and
Article 14(6) of the TRIPS Agreement.
3. In light of Article 50 of the TRIPS Agreeme nt, do courts have the authority to adopt
provisional measures ex parte?
Yes, they do.  Articles 700(1) and 717(2) of the Civil Code stipulate that decisions by courts
in regard to application for provisional measures may be rendered without pleadings.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 15
IV. RESPONSES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
A. COPYRIGHT AND RELATED RIGHTS
1.  Do Articles 2 and 4 of the Copyright Act cover "three dimensional works relative to
geography, topography, architecture or science" as  provided for in Article 2(1) of the Berne
Convention (1971)?
Yes, they do.  Article 2 of the Copyright Act defines  " works " and Article 4 elaborates on
what is included in the concept of " works ". " Works " are defined as creative products that fall in the
category of original literary, scientific or artistic works.  "Models and other diagrammatic works", as
referred to in Article 4(1)(viii) of the Copyright Act, are interpreted as including "three dimensional
works" as mentioned in Article 2(1) of the Berne Convention (1971).  Article 4(1)(v) specifically
includes architectural works (including architectural models and plans) in the concept of "works".
2. In Article 8 of the Korean Copyright Act, a presumption is created in terms of when a
person, whose name is merely "indicated" on a given work, is presumed to be the "author" of
that work.  Could such a presumption lead to ab use, contrary to the spirit of Article 2(6) of
Berne (1971)?
Article 8 of the Copyright Act aims at providing a legal predictability for users as well as
authors.  This provision is not in contradiction with  the legal protection provided in Article 2(6) of the
Berne Convention.  When the authorship of a work is claimed by a person other than the true author,
true authorship can be established by rebutting the presumption with evidence showing otherwise,
since Article 8 is simply a provision of presumption.
Article 99 of the Copyright Act provides that any person who has made a work public under
the real name or pseudonym of a person other than the author is subject to imprisonment for up to one
year or a fine not exceeding ten million won.
3. Please explain why the reference to "exclusive", in relation to the rights granted under
Articles 16, 17, 18, 19, 20 and 21 of the Korean Act, has been omitted.
Although there is no specific reference to "exclusive" rights in Articles 16 through 21, it is
clearly understood that these rights are " exclusive" in nature.  In fact, it is an author alone that has
exclusive rights concerning the use of his works and enjoys the benefits flowing from the use.
Therefore, the rights recognized by the Copyright Act are equivalent to those provided for in the
relevant international treaties.
4. Does the Right of Reproduction, provided in  Article 16 of the Copyright Act, extend to
authorization of translations which is fore seen under Article 8 of the Berne Convention?
The right to authorize the translation of a work is recognized by Article 21 of the Copyright
Act, which concerns the "right of the production of derivative works", not Article 16.  A "derivative
work" is defined by Article 5 of the Copyright Act as being a creation produced by the translation ,
among other means, of an original work.
5. Is there any requirement in Korean law that sources must be indicated when invoking
the news reporting exception of Article 24 of  the Copyright Act as foreseen under Article 10 bis
Berne Convention?IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 16
Korea's Copyright Act does not incorporate Article 10 bis(1) of the Berne Convention.
Therefore, the requirement of indicating sources is irrelevant.  Korea's Copyright Act incorporates
only Article 10 bis(2) of the Berne Convention in its Article 24.
Follow-up question:
Can Korea confirm that Article 24 of the Copyright Act does not refer to broadcast
works or articles in periodicals or newspapers on current topics, and that no other provision of
Korean copyright law permits reproduction of su ch broadcast works or articles irrespective or
whether reproduction, broadcasting or such communication thereof is not expressly reserved
As indicated in Korea's response to question 5, Korea confirms that Article 24 of the
Copyright Act mirrors only Article 10 bis(2) of the Berne Convention.  However, under Article 26 of
the Copyright Act, works may be performed publicly or broadcast in limited circumstances for non-
profit purposes where no admission fee is charged to the audience or spectactors.
6. Please explain how Article 26, paragraph 2, Copyright Act can be justified under the
provision of the TRIPS Agreement (notably Ar ticle 14) and the Berne Convention (notably
Article 11).  Please list the case, if any, prescribed  by the Presidential Decree referred to in this
Article.
A public performance, where no admission fee is charged to the audience or spectators, is
interpreted as being similar in its nature to the catego ry of what is called "minor reservations".  It has
been recognized that the Berne Convention did not stop member countries from preserving their law
on these exceptions ( Guide to the Berne Convention , published by the WIPO, Geneva, 1978).   
Circumstances in which commercial phonogra ms or cinematographic works may not be
performed publicly, even if no admission fee is charged, are prescribed in Article 2 of the
Enforcement Decree of the Copyright Act. Under the Decree, performances of such works are not
allowed at restaurants or bars where the appreciation of such works, through special facilities
dedicated to that purpose, constitutes a major part of their business.
7. Please explain how Korea provides protection for pre-existing works and sound
recordings in line with Article 18 Berne Convention and Article 14, paragraph 6 of the TRIPS
Agreement.
The current Copyright Act grants protection to foreign works as well as Korean works whose
author died after 1 January 1957.  The term of this protection is based on the addendum to the current
Copyright Act.  This addendum stipulates that the copyright in works of foreigners and the rights of
foreign performers of phonograms and producers of phonograms, which were published before
1 July 1996 and were to be newly protected by this amendment, shall be protected for the remainingperiod of protection, which would have been recognized if such works had been protected in Korea.
Given the following history of Korean copyright legislation, the phrase, "protection, which would
have been recognized if such works had been prot ected in Korea" means that foreign works, whose
author died after 1 January 1957, are protected, like Korean works.
Under the old Copyright Act, which was first enacted in 1957 and remained effective until
1987, only Korean copyright works were protected for life plus 30 years.  This Act rendered Korean
works, whose author had died before 1 January 1957, to have fallen into the public domain by 1987.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 17
In 1987, the Copyright Act was amended to stipulate the protection of copyright for life plus
50 years.  Therefore, under this Act, prolonged protection (i.e., life plus 50 years) was provided to
Korean copyright works whose author died after 1 January 1957, because these works were yet to fall
in the public domain.  For foreign works, protection was effective as of 1987.
Under the current Copyright Act, which took effect on 1 July 1996, foreign works began to
enjoy retroactive protection.  However, this retroactive protection is provided only to foreign works
whose author died after 1 January 1957, since Korean works enjoy the same terms of protection.  If
we protect foreigners' works for the full term of protection (50 years), we will be discriminating
against Korean works.
8. Please explain how Article 63 of the Copyright Act provides performers the possibility
of preventing unauthorized fixation of performers and reproduction of any fixation as foreseen
under Article 14, paragraph 1 of the TRIPS Agreement.
Article 63 of the Copyright Act concerns a performer's right to reproduce his performances.
Under this provision, the performer can prevent the unauthorized fixation of his performance orunauthorized reproduction of such fixation on a phonogram  or any other media , thus enjoying
protection that is wider than that envision ed by Article 14(1) of the TRIPS Agreement.
9. Please explain whether Article 67 extends  to indirect reproduction of phonograms as
foreseen under Article 14, paragraph 2 of the TRIPS Agreement?
Article 67 of the Copyright Act concerns the right of the producers of phonograms to
reproduce and distribute their phonograms.  The scope of this right is understood to be wide enough to
cover indirect reproduction as foreseen under Article 14(2) of the TRIPS Agreement.
10. Could the presumption in Article 6 of the Computer Programs Protection Act be used to
undermine the rights of the author where a person whose name is indicated on a work is not the
author?
Article 6 of the Computer Progra ms Protection Act aims at providing a legal predictability for
users as well as authors.  This provision is not in contradiction with any legal protection provided in
Article 2(6) of the Berne Convention.  When the aut horship of a computer program is claimed by any
person other than the real author, true authorship can be established by rebutting the presumption with
evidence showing otherwise, because this Article is simply a provision of presumption.  Article 34(1)
of the Act provides that any person who has made a work public under the real name or pseudonym of
a person other than the author is subject to imprisonment not exceeding three years or a fine for up to
50 million won.
Further, Article 26(3) of the same Act regards an  act of intentionally eliminating or modifying
electronic copyright management information without authorization as being an infringement.
Article 34(3) of the Act provides that any person committing this act is subject to imprisonment for up
to one year or a fine not exceeding ten million won.
11.  Please explain whether Korea has or intends to subsequently amend the Copyright Act
and the Computer Programs Act.  If so, please specify the potential amendments.
Since the notification was made in February this  year with regard to IPR-related laws and
regulations of Korea, amendments to two IPR-related laws, i.e., the Copyright Act and the ComputerIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 18
Program Protection Act, have been passed by the National Assembly.  These laws will take effect in
July this year.  A notification of these amendments will be made in due course.
The new amendment to the Copyright Act contains, inter alia , the new exclusive right of
interactive transmission, which incorporates the right of communication to the public as stipulated in
Article 8 of the WIPO Copyright Treaty.  Further, keeping in mind Korea's possible accession to the
WCT/WPPT in the near future, the Korean government is considering amending the Copyright Act to
incorporate the obligation concerning technological measures and rights management information.
The new amendment to the Computer Program Protection Act prohibits the circumvention of
technological protection measures, empowers officials of the Ministry of Information and
Communication to crack down on piracy, and provides for the harsher punishment of repeatedinfringers.
Follow-up question:
When does Korea foresee being in a position to make the notifications referred to in the
response?
Korea will make the notification as early as possible once the work of translating the
amendments to the two Acts (the Copyright Act and the Computer Program Protection Act) is
completed.
B. T
RADEMARKS
12. Can trademarks, consisting of geographical indications other than those used in
connection with wines or spirits, be registered in Korea?
Under Article 6(1)(iii) and (iv) of the Trade Marks Act, a trademark that consists solely of a
conspicuous geographical name or a sign indicating the origin of goods is not registerable as a
trademark.  However, a sign indicating the origin of goods may be registered if it is generally
recognized by consumers as a result of its previous use (Article 6(2)).
Follow-up questions:
A. Why are the provisions of Article 6(1) of the Trademark Act in respect of geographical
indications qualified to apply to trademarks that consist "solely" of a "conspicuous"
geographical name when no such qualification appears in Article 22 of the TRIPS Agreement?
Article 6(1)(iv) of the Trademark Act is one of the provisions aimed at protecting
geographical indications in accordance with Article 22 of the TRIPS Agreement.  Other provisions of
the Act, such as Article 6(1)(iii) and 7(1)(xi), also serve the same purpose.  In other words, these
provisions complement one another in protecting any geographical name, including a geographical
indication.
When any trademark consists of or contains a geographical name, it may be rejected or
invalidated, under one of these provisions:
- Article 6(1)(iv) of the Trademark Act aims to prevent any conspicuous geographical
name from being registered as a trademark, the reason being that such a name lacks the
distinctiveness needed to be registered as a trademark, and it would be unreasonable to grantIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 19
an exclusive right to a specific person, which would result in giving an unexpected
disadvantage to his competitors;
- even when a geographical name is not conspicuous, the registration of a trademark
may be refused or invalidated under Article 6(1)(iii) of the Act if the trademark solely
consists of such a geographical name; and finally
- even if a trademark does not consist of a conspicuous geographical name, it may be
rejected or invalidated under Article 7(1)(xi) if it is liable to mislead or deceive consumers as
to the quality of the goods.
Given the above, therefore, the Trademark Act provides more extensive protection to
geographical indications than that which is required by Article 22 of the TRIPS Agreement.
B. Further, can Korea confirm that the provisions of Article 6 apply to geographical
indications other than those used in connection with wines or spirits and can Korea explain whyArticle 7(1)(xiv) limits its terms of application expressly to wine and spirits or "other similar
goods"?
Korea confirms that Article 6 of the Trademark Act applies to geographical indications other
than those used in connection with wines or spirits.
Article 7(1)(xiv) of the Trademark Act reflects Article 23(2) of the TRIPS Agreement
concerning the additional protection for geographical indications for wines and spirits.  It is to be
noted that by including the phrase "other similar goods", the coverage of the protection stipulated inthe said Article is broader than  that in the TRIPS Agreement.
13. In Article 42(2) of this Act, reference is made to the term of a trademark being
renewable for "an" additional 10 years.  Please clarify whether or not the registration of atrademark is renewable indefinitely.
Yes, the registration of a trademark can be renewed indefinitely.
14. How does the Trade Marks Act confer the excl usive right to prevent all third parties not
having consent from using, in the course of tr ade, identical or similar signs as required in
Article 16 of the TRIPS Agreement, to the trademark owner?
Article 50 of the Trade Marks Act stipulates that the owner of a trademark right shall have the
exclusive right to use the trademark with respect to the designated goods.  Articles 65 and 66 of the
same law incorporate Article 16 of the TRIPS Agreement by regarding the following acts as
infringing the trademark right and conferring on the right owner the right to request actual or potential
infringers to stop or refrain from such infringement:
- an act of using a trademark identical to the registered trademark of another person on
goods similar to the designated goods;  and
- an act of using a trademark similar to the registered trademark of another person on
goods identical or similar to the designated goods.
15. Is it possible that some registered marks be  assigned only on sale of a business, as
suggested in the Trade Marks Act, Article 54(8) and (9)?IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 20
Article 54 of the Trade Marks Act provides for a limited number of specific cases where an
assignment of trademark must be made only with th e transfer of the business to which that trademark
belongs.  These exceptions aim at recognizing the special nature of public and non-profit
organizations and prevent confusion on the part of general consumers.  Since they take full account of
the legitimate interests of the owner of the trademark and of third parties, these exceptions are
justified under Article 17 of the TRIPS Agreement.
C. GEOGRAPHICAL INDICATIONS
16. Please explain whether or not your trademark registration authority refuses a
trademark application if it contains a geographical indication.
Under Article 6(1) of the Trade Marks Act, an application for the registration of a trademark
that consists solely of a conspicuous geographical name or a sign indicating the origin of goods is to
be refused.  Further, an application of the registration of any trademark that contains or consists of the
geographical indications of wines or spirits that originate in any WTO Member is to be rejected underArticle 7(1)(xiv) of the Trade Marks Act.
4
17. Please give the definition of a geographical indication in your legislation.
According to Article 2(5) of the Agro-fisheries Product Quality Management Act, a
geographical indication means the geographical name of a specified region, which serves to designate
a product or a processed product originating therein, the reputation, quality and characteristics of
which are essentially attributable to the geographical origin.
18. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
Article 15 of the Enforcement Decree of the Agro-fisheries Product Quality Management Act
stipulates that one of the criteria for determining whether a geographical indication is recognized is
whether the reputation, quality, and other special characteristics of the product concerned can be
attributed to the natural environment and the people from the specific geographic area.
19. Please describe whether or not, how additional protection is granted by your legislation
to wines and spirits.  Please mention other types of products, if any, which are covered by this
additional protection.
Additional protection as provided for in Article 23 of the TRIPS Agreement is provided to
wines and spirits in the Notice Concerning Liquor Labeling, an amendment to which took effect
14 June 2000.  According to the amended Notice, even where the true origin of the goods is indicated
or a geographical indication is used in translation or is accompanied by the expressions such as"kind", "type", "style", "imitation" or the like, the use of the geographical indication identifying wines
or spirits that do not originate in the place indicated by the geographical indication is prohibited.
Other types of products are not entitled to such additional protection.
                                                     
4 The EC and their member States posed two follow-up questions to question 16 which are reproduced
with Korea's responses after the response to question 12, above.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 21
20.  Please explain how exceptions under Article 24 of the TRIPS Agreement are used in
your jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of
names considered as generic in your jurisdiction.
There is no provision in Korean law that corresponds to Article 24 of the TRIPS Agreement.
No court decision has been made regarding these exceptions.  Korea does not have any list of names
that are considered as generic.  However, " Champagne", which is generally understood as sparkling
wine in Korea, seems to fall under this category.
Follow-up question:
Does Korean law provide exceptions to protec tion of geographical indications in terms
of Article 24, paragraphs 4, 5 and 7, as suggested in part by the reference to Champagne in the
response and, if so, what is the legal basis for such exceptions in Korean law?
Currently, Korean law does not provide exceptions, as provided for in Article 24.4 and 24.5,
to the protection of geographical indications.  However, according to Article 76 of the Trademark Act,
a trial for the invalidation of a trademark registration under Article 7(1)(xiv) cannot be requested after
five years from the date of the trademark registration.  This provision is related to Article 24.7 of the
TRIPS Agreement.
D. INDUSTRIAL DESIGNS
21. Please explain how the right to "sell" in accordance with the Design Act does comply
with Article 26.1 of the TRIPS Agreement.
The concept of "working", which includes "assigning" as defined in Article 2(vi) of the
Design Act, includes an act of selling because selling is a form of  assigning.
Follow-up questions:
A. Can Korea confirm that under Korean law the definition of "assignment" is in all
circumstances broad enough to include the verb  "sell" in light of the express reference to
"selling" in Articles 26 and 28 of the TRIPS Agreement?
B. In light of the difference between the texts of Korean law and the TRIPS Agreement as
identified, please provide the legal basis for conf irming the inclusion of the act of selling within
the definition of assignment.
Korea confirms that the concept of "assigning" ("yangdo" in Korean), as referred to in
Article 2(iii) of the Patent Act and Article 2(v) of the Design Act, includes the verb "sell" in light of
the express reference to "selling" in Articles 26 and 28 of the TRIPS Agreement.  It is generally
understood under Korea's Civil Code that the concept of "assigning" encompasses two categories:assigning with payment in return and assigning wit hout payment in return.  Obviously, "selling" falls
under the first category.  Under the Patent Act and the Design Act, therefore, the act of assigning the
following items for profit-making purposes is  considered to be an act of selling:
- a patent product;
- a product which is produced by a patented process; and
- the articles to which a design has been applied.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 22
E. PATENTS
22. Please explain how the definition of "invention" in Article 2 of the Patent Act
implements the requirements of Article 27.1 of the TRIPS Agreement?
Article 2 of the Patent Act defines "invention" as a highly advanced creation of technical
ideas that utilize rules of nature. This definition of an invention serves only to distinguish it from a
"device" which is protectable by the Utility Model Act. Given the ambiguity of the reference to
"highly advanced", the examination guideline of th e Korea Industrial Property Office prescribes that
the high advancedness of the invention should not be considered when its patentability is examined.
A patent is granted in Korea if the invention is new, involves an inventive step and is capable of
industrial application, which is in conformity  with Article 27(1) of the TRIPS Agreement.
Follow-up question:
Please specify the precise terms of the examination guideline which provides the
clarification that "highly advanced" is not a relevant consideration in patentability under
Korean law.
Chapter 2 (patentability) of the Examination Guideline includes the following paragraph:
"As Article 2(1) of the Patent Act stipulates that the term "invention" means a highly
advanced creation of any technological idea utilizing the rules of nature, any invention should meet
this definition to be qualified for the subject-matter for protection under the Patent Act.  However, the
requirement of being "highly advanced" under the Pa tent Act should not be taken into consideration
when determining whether the claimed invention is indeed a subject-matter for protection, given thatthe phrase "highly advanced" is interpreted for the practical purpose of examination only as being
intended to distinguish between an "invention" as a subject-matter under the Patent Act and a "device"
as a subject-matter under the Utility Model Act.
23. Please explain how Articles 2(iii), 94 and 127 of the Patent Act comply with Article 28 of
the TRIPS Agreement?
Article 94 of the Patent Act stipulates that a patentee shall have the exclusive right to work a
patented invention both commercially and industrial ly.  Under Article 127 of the same Act, any third
person who works a patent is deemed to be infringing.  "Work" is defined by Article 2(iii) as follows:
- in the case of an invention of a product, acts of manufacturing, using, assigning,
leasing, importing, or offering to assign or lease the product;  and
- in the case of an invention of a process, acts of using the process;  and in particular, in
the case of an invention of a process of manufacturing a product, acts of using,
assigning, leasing, importing, or offering to assign or lease the product manufactured
by the process, in addition to the acts of using the process.
The apparent difference in the text between these provisions and Article 28 of the
TRIPS Agreement is that there is no specific refere nce to acts of selling in the provisions of the
Korean Act.  When a patented product or a product manufactured by a patented process is assignedfor a profit-bearing purpose, this act is understood as that of selling, and the act of offering to assign isIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 23
understood as the act of offering for sale.  Therefore, Articles 2(iii), 94 and 127 of the Patent Act
fulfill the requirement of Article 28 of the TRIPS Agreement.5
24. Does the grant of a patent in Korea involve the requirement of proof of "inventive steps
capable of industrial application"?
The English text of Article 33(1) of the Patent  Act as notified in document IP/N/1/KOR /P/1,
refers erroneously to a "new" invention when it refers to a person who is entitled to obtain a patent.
The word "new" does not appear in the original Kore an text.  An apology is offered for the confusion
caused by the mistake in the translation.  In fact, Article 29 of the Patent Act identifies industrial
applicability, novelty and an inventive step as the requirements of patentability, which is in full
conformity with Article 27(1) of the TRIPS Agreement.
25. Please explain how Article 88(1) of the Patent Act and Article 1 of the addenda comply
with Articles 33, 65.1, 70.2 and 70.8 of the TRIPS Agreement.  In particular, in relation to the
retroactive protection of patents in force on 1 January 1996 or pending patent applications on
that date?
The Addendum (dated 29 December 1995) to the Patent Act was not included in the
notification (IP/N/1/KOR/P/ 1).  When the Patent Act was revised in 1995, it was stipulated that the
term of protection shall not end before the expiration of a period of twenty years from the filing date,
in order to incorporate Article 33 of the TRIPS Agreement.  Article 3(2) of the 1995 Addendum
stipulates that if the term of protection is reduced, due to the amendment to the Patent Act, for patents
still in effect and for pending patent applications, the term of protection shall be determined according
to the relevant provision before the revision, which provided protection for 15 years beginning fromthe date of publishing the application.
Follow-up question:
Please confirm when the addendum to the Patent Act referred to in the response will be
notified.
Article 3(2) of the 1995 Addendum of the Patent Act is relevant to question 25 posed by the
EC.  The full text (unofficial English translation) of the said Article is reproduced herein:
"Article 3 (Transitional Measures Concerning the Term of Patent Rights)(2) In the case where the term of a patent right which is still valid or the application of
which is pending with the Korea Industrial Property Office at the time when this Act enters
into force is to be shortened due to the im plementation of this Act, its term shall be
determined by the earlier provisions."
26.  How do Articles 98, 104, 107 and 116 of the Patent Act correspond to Article 31 of the
TRIPS Agreement?
Article 98
                                                     
5 The EC and their member States posed two follow-up questions to question 23 which are reproduced
with Korea's responses after the response to question 21, above.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 24
Under Article 98 of the Patent Act, if the working of a patented invention is to infringe
another person's earlier patented invention, the patentee must work the patented invention
commercially or industrially with permission of the owner of the earlier patent.
However, a trial for granting a non-exclusive licensee can be requested in certain cases under
Article 138.  If the owner of the earlier patent refuses to grant permission without justifiable reasons,
or if it is not possible to obtain such permission, the second patent holder can request a trial to obtain
the non-exclusive licensee needed to work his inve ntion.  At the trial, the licensee is granted only
where the patented invention of later application constitutes a substantial technical advance compared
with the first one.  On the other hand, the owner of  an earlier patented invention, who has granted a
non-exclusive licensee, may also request a trial to obtain a non-exclusive licensee to work the
patented invention of the licensee, if the latter refuses to give permission without justifiable reasons or
if it is not possible to obtain such a permission.
Therefore, this Article complies with Article 31 of the TRIPS Agreement.
Article 104
Article 104 of the Patent Act concerns the non-exclusive licensee that is recognized due to
working prior to the request for an invalidation trial of the patent. This provision is not concerning the
compulsory licence, and is, therefore, not relevant to Article 31 of the TRIPS Agreement.   
Article 107
Article 107 concerns adjudication for the grant of a non-exclusive licensee that can be
requested under one of the following conditions:
- where the patented invention has not been  worked for more than three consecutive
years in Korea, except in the case of natural disaster, unavoidable circumstances or
other justifiable reasons;
- where the patented invention has not been worked commercially on a substantial
scale for more than three consecutive years in Korea;
- where the working of a patented invention is necessary for a public non-commercial
use;  or
- where the working of a patented invention is necessary to remedy a practice found by
the judicial or administrative process to be anti-competitive.
In the first and second cases, a non-exclusive licence is granted only when consultations with
the patentee or exclusive licensee were not possible or no agreement was reached at the consultations.
With respect to semi-conductor technology, a request is restricted to cases where the working
of the patented invention is necessary for public non-commercial use or where it is necessary to
remedy a practice found by the judicial or administrative process to be anti-competitive.
Therefore, this Article complies with Article 31 of the TRIPS Agreement.
Article 116IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 25
Article 116 stipulates that the patent can be cancelled if its non-exclusive licensee does not
work the patented invention for a period of two years from the date of adjudication in Korea.  This
Article is not relevant to Article 31 of the TRIPS Agreement.
Follow-up questions:
A. What is the basis in the TRIPS Agreement or the relevant provisions of the Paris
Convention for the provisions of Articles 104 and 116 of the Patent Act?
The TRIPS Agreement has no provision equivalent to Article 104 of the Patent Act.  This
Article intends to give relief to a person who has been working, or preparing for the working of, aninvention or device, without knowing that his pate nted invention is subject to invalidation.  The
licence granted under this Article is different in na ture from the compulsory licence stipulated in the
TRIPS Agreement.
Article 116 of the Patent Act is based on Article 5A(3) of the Paris Convention.  It provides
that when a patented invention has not been continuously worked for a period of two or more years
from the time of obtaining the first compulsory licence, the patent right can be cancelled.
B. What is meant by the reference to an invention being worked commercially "on a
substantial scale" in Article 107 and what is the basis for its inclusion?
The requirement that an invention should be worked commercially "on a substantial scale"
means that it should be worked to such an extent necessary to meet the domestic demand.  In other
words, if a patented invention is worked nominally or not on a scale sufficient enough so that the
domestic demand is met, the authorization of a non-exclusive licence can be requested.  However,
what constitutes the substantiality in scale should be determined on a case-by-case basis in
consideration of the type or nature of the invention, market conditions and other relevant factors.
This requirement is based on Article 1 of the Act, which provides that the purpose of this law
shall be to encourage, protect and utilize inventions, to improve and develop technology, and to
thereby contribute to the development of the industry.  In order to achieve this objective, the invention
should be used in a commercially meaningful ma nner as required by Article 107.  Therefore, the
requirement of Article 107 is consistent with the basic purpose of the Act.
C. Is the reference to an advance of "considerable economic significance" contained in
Article 31(l) of the TRIPS Agreement reflected in Article 138 of the Patent Act or elsewhere
and, if so, where?
Article 138 of the Patent Act reflects Article 31(l) of the TRIPS Agreement.  It is true that the
phrase "an important technical advance of considerable economic significance" found in the TRIPS
Agreement is not incorporated word by word in Article 138 of the Patent Act.  However, the phrase
"considerable technological progress" used in Article 138 is interpreted as being equivalent to anadvance of "considerable economic significance" in light of the purpose of the legislation.
27. Is it intended to apply provisions of Article 129 of the Patent Act in cases where the
product obtained by the patented process is new?
Yes, it is.  The phrase, "product was not public ly known in Korea prior to the filing of the
patent application", which is contained in Article 129 of the Patent Act, is interpreted as referring to
novelty as mentioned in Article 34(1)(a) of the TRIPS Agreement.  Although Article 129 echoes theIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 26
language of only the first part of Article 29(1)(i), the phrase is understood to encompass the
requirement of novelty as contained not only in Article 29(1)(i) but also in Article 29(1)(ii).
F. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
28. Please explain the omission of the acts of infringement of "selling or otherwise
distributing" in the Act on the layout-designs of semi-conductor integrated circuits.
Under Article 2(iv)(c) of the Act on the Layout Designs of Semi-conductor Integrated
Circuits, the concept of " use " includes, inter alia , transferring, leasing, displaying (limited to
displaying for the purpose of making a transfer or lease) or importing of a layout-design.  This
definition is interpreted to include "selling or distributing".  Article 8 of the same Act recognizes the
exclusive right of a person who registered a layout-design, and Articles 35 through 38 provide for theremedies for infringement.
29. How is the limitation of layout-design rights in Article 8(2) of the Act on the
Layout-Designs of Semi-conductor Integrated Circuits justified under the TRIPS Agreement?
Article 8(2) of the Act, as referred to in the question, seems to mean Article 9(2).  Article 9(2)
concerns the non-effect of a layout-design right for a person to whom a lawfully made semi-conductor
integrated circuit has been transferred.  On the other hand, Article 9(3) excludes the effect of a layout-design right for a bona fide person for whom an unlawfully  made semi-conductor integrated circuit
has been transferred.  A bona fide person is one "in good faith and without negligence" (literal English
translation of the Korean text of Article 9(3)), legally meaning "did not know and has no reasonable
ground to know".  This is in conformity with Article 37.1 of the TRIPS Agreement.
30. Why are the grounds of lack of originality or of being commonplace, as provided for in
Articles 3(2)(a) and 3(2)(b) of the Treaty in Respect of Integrated Circuits (1989), not
incorporated into Article 20(1) of the Act?
Article 6 of the Act on the Layout-Designs of Semi-conductor Integrated Circuits stipulates
that a creative layout-design is registerable.  In light of the practical difficulty in determining, during
the examination of an application for registration, whether a layout-design is creative or not,
originality is not explicitly included in the criteria for approving the registration.  This does not mean,however, that a creative layout-design is not protected.  It is to be noted that Article 24 of the Act
stipulates that the registration of an already registered layout-design, which is found not to be creative,
should be cancelled.
31. What is the form of the "Presidential Decree"  referred to in Article 20(1)(iv) of the Act
in the Layout-Designs of Semi-conductor Integrated Circuits?
Article 12 of the Enforcement Decree lists the following cases as « other » conditions under
which an application for registration is rejected:
- when the application does not provide all required information;- when the matters mentioned in the application are not consistent with the
accompanying drawings or other documents;IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 27
- when the application is not accompanied by the required drawings and other
documents, or when the accompanying drawings and other documents are not
consistent with each other;  or
- when registration fees have not been paid.
G. PROTECTION OF UNDISCLOSED INFORMATION
32. Does Article 2(2) of the Unfair Competition Prevention and Trade Secrets Protection
Act afford protection to trade secrets under th e terms of the Article 39.2(c) of the TRIPS
Agreement?
Article 2(2) of the Unfair Competition Prevention and Trade Secret Protection Act defines
"trade secrets" as production methods, marketing methods and other technical or management
information that are useful for business activities, which are not publicly known, has an independent
economic value, and has been maintained and managed as secrets through considerable efforts.  The
question seems to inquire about the discrepancy of the language between "through considerable
efforts" which is used in the Korean law and "reasonable steps under the circumstances" whichappears in the TRIPS provision.  The concept of "considerable efforts" is understood to mean both the
intention of the person possessing trade secrets to protect them and his acts of taking concrete steps to
realize his intention.  Therefore, it is understood that the phrase used in the Korean law is equivalent,
in effect, to the language of the TRIPS provision.
33. Please advise where provisions are to be found in the Korean legislation, protecting
against disclosure and unfair commercial use of data, submitted for marketing approval as
required by Article 39.3 of the TRIPS Agreement.
According to Article 27 of the Agrochemicals Control Act and Article 72-9 of the
Pharmaceutical Affairs Act, data submitted to gove rnment authorities for the marketing approval of
pharmaceutical or agricultural chemical products are prohibited from being disclosed to the public
when the person who submitted such data requests the protection of the data.
Articles 6 and 9 of the Enforcement Decree of the Agrochemicals Control Act and
Article 5(13) of the Pharmaceutical Safety and Efficacy Review Regulation prohibit any unfair
commercial use of data.  Only with the permission of the earlier applicant can other applicants rely ondata submitted by the earlier applicant.
Follow-up question:
Please specify the TRIPS Council documents containing the notifications of the
provisions referred to in this response.
The relevant provisions referred to in response to question 33 (Agrochemicals Control Act,
Enforcement Decree of the Agrochemicals Control Ac t, Pharmaceutical Affairs Act) were notified as
"Other laws and regulations" (document IP/N/1/KOR/1 dated 15 February 2000).
34. It would seem that the notion "gross negligence" in Article 13(2) of the Unfair
Competition Prevention and Trade Secrets Protecti on Act is more limited than the notion "in a
manner contrary to honest commercial practices" to be found in Article 39.2 of the TRIPS
Agreement.  Please explain the relations between the two concepts.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 28
Article 2(3) of the Unfair Competition Prevention and Trade Secret Protection Act defines
"infringement of trade secrets" and enumerates acts  falling under this definition.  This Article, along
with Articles 10 through 12, corresponds to Article 39(2) of the TRIPS Agreement.  Article 13 of the
Act addresses the acquisition of undisclosed information by a third person who acquired legitimately
trade secrets through transactions (paragraph 1) and defines such a person (paragraph 2).  Therefore,
Article 13 corresponds to the second part of the footnote of Article 39(2) of the TRIPS Agreement.
V. RESPONSES TO QUESTIONS POSED BY JAPAN
A. COPYRIGHT AND RELATED RIGHTS
1. Please explain how the protection is provi ded for works, phonograms, performances and
broadcasts from other WTO Members under the Law on Copyright and Neighbouring Rights
of Korea (hereinafter referred to as "Copyr ight and Neighbouring Rights Law").  Please
describe the provisions of the Copyright and Neighbouring Rights Law which provide for the
national treatment and most-favoured-nation treatment as required by Articles 3 and 4 of the
TRIPS Agreement as well as Article 9.1 of the Agreement which incorporates Article 5.1 of theBerne Convention.
Article 3(1) of the Copyright Act stipulates that the copyright of works of foreigners, as
referred to in the question, are protected in conformity with the treaties to which Korea has acceded or
ratified, including the Berne Convention and the TRIPS Agreement.  Article 61 of the Copyright Actalso stipulates that the neighbouring rights of fo reigners are protected in conformity with the
international treaties to which the Korea has a cceded or ratified, including the TRIPS Agreement.
The Korean Copyright Act does not provide different treatment to foreign works, when
compared to Korean or third foreign works, in light of the minimum protection requirement of theTRIPS Agreement which the Korean Copyright Act incorporates, and thus provides national treatment
and most-favoured-nation treatment.
2. Please explain exceptions or exemptions of  the national treatment and most-favoured-
nation treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
According to Article 3(3) of the Copyright Act which contains the principle of reciprocity, the
protection of foreigners' works may be restricted, when the country of origin does not protect the
works of Korean nationals.  However, minimum protection, as provided under the treaties to which
Korea has acceded or ratified, is provided.
Article 65(1) of the Copyright Act provides that the payment of reasonable compensation for
broadcasting commercial phonograms in which performances are recorded is not required in the case
where the performers are foreigners.  This exception complies with Article 16(1) of the Rome
Convention and Article 14(6) of the TRIPS Agreement.
3. Please explain whether and how Korea provides retroactive protection to works,
phonograms, performances from other WTO Members, as required by Articles 9.1, 14.6, and
70.2 of the TRIPS Agreement which apply, mutatis mutandis , Article 18 of the Berne
Convention.  Please indicate the date to which su ch protection extends back with respect to each
category of subject matter.
The current Copyright Act grants protection to foreign works as well as Korean works whose
author died after 1 January 1957.  The term of this protection is based on the addendum to the currentIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 29
Copyright Act.  This addendum stipulates that the copyright in works of foreigners and the rights of
foreign performers of phonograms and producers of phonograms, which were published before
1 July 1996 and are to be newly protected by this amendment, shall be protected for the remaining
period of protection, which would have been recognized if such works had been protected in Korea.Given the following history of the Korean copyrigh t legislation, the phrase, "protection, which would
have been recognized if such works had been protected in Korea" means that foreign works whose
author died after 1 January 1957 are protected, like Korean works.
Under the old Copyright Act, which was enacted for the first time in 1957 and remained
effective until 1987, only Korean copyright works were protected for life plus 30 years.  This Act
rendered Korean works whose author had died before 1 January 1957 to have fallen into the publicdomain by 1987.
In 1987, the Copyright Act was amended to stipulate the protection of copyright for life plus
50 years.  Therefore, under this Act, prolonged protection (i.e., life plus 50 years) was provided to
Korean copyright works whose author died after 1 January 1957, because these works were yet to fallin the public domain.  For foreign works, protection was effective as of 1987.
Under the current Copyright Act, which took effect on 1 July 1996, foreign works began to
receive retroactive protection.  However, this retroactive protection is provided for those foreign
works whose author died after 1 January 1957, since Korean works enjoy the same terms ofprotection.  If we protect foreigners' works for the full term of protection (50 years), we will be
discriminating against Korean works.
4. Please explain whether protection of "computer programs" under the Copyright and
Neighbouring Rights Law covers computer programs in both source and object code, asrequired by Article 10.1 of the TRIPS Agreement.  Are those computer programs protected as
literary works in accordance with Article 2.1 of the Berne Convention?
Before answering this question, it should be noted that "computer programs" are protected by
the "Computer Program Protection Act", which is dis tinct and separate  from the "Copyright Act".
Article 2(1) of the Computer Program Protection Act defines "programs" as creative works expressed
as a series of instructions and commands used directly or indirectly in a computer for the purpose ofobtaining a certain result.  It is interpreted that both the source code (instructions and commands used
directly) and object code (instructions and commands used indirectly) are protected by this Act.
Since computer programs are defined by the said Article as creative works expressed as a
series of instructions and commands, they are protected as literary works as provided in Article 2.1 ofthe Berne Convention.
5. Please clarify whether "database" under the Copyright and Neighbouring Rights Law
includes compilation of data in machine-readab le form.  Please explain how the Law complies
with Article 10.2 of the TRIPS Agreement in this respect.
According to Article 6 of the Copyright Act, a compilation (including collections of treatises,
numerical values, diagrams and other materials which are systematically composed so as to be
retrieved by using information processing devices), which is, due to the selection or arrangement of
their contents, of a creative nature, is protected as an independent work.  The phrase included withinthe bracket clearly indicates that the compilation of  data in machine-readable form is protected, in
compliance with Article 10.2 of the TRIPS Agreement.
6. Please indicate whether compact discs, su ch as CD-ROMs, mainly consisted of music
and accompanied by characters, still images, motion pictures or any other types of data thanIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 30
audio are protected as "database" under the Copyright Law, if such data, including music, can
be retrieved.
If the selection and arrangement of such data are recognized as being of a creative nature, the
compact disc as a whole is copyrightable, with the copyright of the individual contents and items
remaining intact.
7. Please explain how the exception of Article 27 of Copyright Law and Article 12.4 of
Computer Protection Act of Korea have been strict ly interpreted so as to bring them within the
permissible limitations on Article 9.2 of the Be rne Convention and Article 13 of the TRIPS
Agreement.
Reproduction for private use is allowed, as long as the reproduction:  (i) is used for a
non-commercial purpose;  (ii) is used within a limited circle of users such as family members, or used
for personal use;  and (iii) is made by the user himself.  Thus, if such conditions are met, this type of
reproduction does not infringe seriously the economic interests of the right holder.  Further, it is notfeasible to require that the permission of the right holder be obtained for this type of reproduction.
Therefore, this type of reproduction does not conflict with the normal exploitation of the work and
does not unreasonably prejudice the legitimate interests of the author as provided in the provisions of
the Berne Convention and the TRIPS Agreement.
B. P
ROTECTION OF UNDISCLOSED INFORMATION
8. As a condition of approving the marketing of pharmaceutical or of agricultural
chemical products which utilize new chemical entities, does legislation of Korea require the
submission of undisclosed test or other data, the origination of which involves a considerable
effort?  If so, please explain how Korea protects such data against unfair commercial use.
The submission of such a test or other data may be required in the application for the
marketing approval of pharmaceutical or agro-chemical products.  Data submitted to the government
authorities for this purpose are protected in accord ance with Article 27 of the Agrochemicals Control
Act, Articles 6 and 9 of the Enforcement Decree of the Agrochemical Control Act, Article 72-9 of the
Pharmaceutical Affairs Act and Article 5(13) of the Pharmaceutical Safety and Efficacy Review
Regulation.  Specifically, any submitted undisclosed tests or data are prohibited from being disclosedand are protected against unfair commercial use.
C. E
NFORCEMENT
9. Please indicate the remedies which the judi cial authorities order regarding intellectual
property rights, including injunctions, damages, expenses, destruction of disposal of infringinggoods, materials or implements for their producti on.  Please explain the criteria for and the way
of calculation to decide the amount of the damages which judicial authorities order to the
person who infringes intell ectual property rights to pay to the right holder.
For available remedies in the case of intellectual property infringement, please see the answer
to Question 5 of the Checklist of Issues on Enforcement.
6  The list of available remedies in the answer
is an exhaustive one.
According to Article 763 of the Civil Code, the amount of compensation is based on the
degree of damages incurred as a result of the unlawful acts of the infringer.  The general principle forcalculating the amount of damages is described in the answer to Question 5 of the Checklist.  It may
                                                     
6 Document IP/N/6/KOR/1.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 31
be added that in order to help avoid the difficulty of calculating the exact amount of damages, various
provisions are provided for the presumption of th e amount of damages.  For example, Article 94 of
the Copyright Act provides that if a book is unlawfully reproduced, and it is found difficult to
determine exactly the number of illegal copies made, 5,000 copies are presumed to have been illegallyreproduced.
As described in the answer to Question 5 of the Checklist, the right holder of infringed
intellectual property may, in general, claim the amount equivalent to that which he could have earned
by the ordinary exercise of his rights.  Notwithstanding this general rule, if the amount of actual
damages is found to exceed the amount he could have earned by the ordinary exercise of its rights, the
copyright holder may claim the actual amount of da mages in accordance with Article 93(3) of the
Amended Copyright Act, which will take effect 1 July 2000.
10. Please indicate titles of laws and regulations and their provisions in which the
suspension of the release of counterfeit tradem ark of pirated copyright goods is prescribed, as
stipulated in Article 51 of the TRIPS Agreement.   Please explain types of intellectual property
rights about which the suspension can be ma de upon an application by a right holder.
Articles 146-2 (3) through (7) of the Customs Act and Articles 127-6 through 127-9 of the
Enforcement Decree of the Customs Act cover the border measures mentioned in the question.  Goods
infringing copyright and trademark rights can be suspended from customs clearance upon anapplication by a right holder.
11. Please explain the kind and amounts of crim inal penalties including imprisonment and
fines regarding intellectual property rights.  In  particular, are the crimes persecuted only when
the injured party has made a formal accusation?  Please also explain whether penalties areconsistent with Article 61 of the TRIPS Agreement which requires the penalties to be sufficient
to provide a deterrent consistently with the level of penalties applied for crimes of a
corresponding gravity.
Please see Korea's answers to questions 16, 17, and 19 of the Checklist of Issues on
Enforcement.  It should be noted that the penalties for the infringement of certain intellectual property
rights will be increased:
- under the Amendment to the Copyright Act that will take effect 1 July 2000, penalties
for copyright infringement will be increased from the current level of imprisonment
for up to 3 years and a fine not exceeding 30 million won to imprisonment for up to
5 years and a fine not exceeding  50 million won;
- under the Amendment to the Computer Program Protection Act, which will take
effect 29 July 2000, persons who repeatedly infringe a computer program copyright
will be subject to harsher penalties i.e., imprisonment for up to 5 years or a fine not
exceeding 70 million won, or both.
VI. RESPONSES TO QUESTIONS POSED BY THE UNITED STATES
A. C
OPYRIGHT  AND RELATED RIGHTS
1. Articles 23 through 33 of Korea's copyright law provide limitations and exceptions to
the exclusive rights of owners of rights in vario us kinds of copyrighted works.  Please explain,
with respect to each Article separately, the mean s by which the exercise of these limitations and
exceptions avoids conflicting with the normal exploitation of the work and prejudicingIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 32
unreasonably the legitimate interests of the copyri ght owner, particularly in light of the express
restriction on the limitation to exclusive ri ghts contained in Article 12.1 of the Computer
Programs Protection Act.
Articles 23 through 33 of the Copyright Ac t and Article 12.1 of the Computer Programs
Protection Act enumerate specific cases where limitations and exceptions to the exclusive rights are
provided, as in other civil law systems.  By providing specific cases that meet the strict criteria for the
limitations and exceptions, in accordance with Article 13 of the TRIPS Agreement, these Articles
avoid any possibility of arbitrary interpretation.
Follow-up questions:
A. In Question 1, the United States asked Korea to please explain the means by which the
exercise of limitations and exceptions in Articles 23 through 33 of Korea's Copyright Act avoids
conflicting with the normal exploitation of  the work and prejudicing unreasonably the
legitimate interests of the copyright owner.  Pl ease elaborate in particular on Korea's position
that the scope of these exceptions do not confli ct with the normal exploitation of the work.
Please also elaborate on Korea's position that they do not unreasonably prejudice the legitimate
interests of the rights holder.
As in other civil law systems, the Articles mentioned in the question avoid any possibility of
conflicting with what is stipulated in Article 13 of the TRIPS Agreement by providing specific cases
that meet the strict criteria for determining limitations and exceptions.  Some elaboration on major
exception clauses is provided.
(1) Article 22 (Reproduction for judicial proceedings, etc.)
Reproduction for judicial proceedings is allowed only if, and to the extent that, the
reproduction is needed.  The proviso of this Article provides that this exception is not allowed when
such reproduction unreasonably prejudices the interests of the right holder, in light of the kind of work
that is reproduced, how many copies are made and in what manner the reproduction is made.
(2) Article 23 (Reproduction for the purpose of school education, etc.)
This exception is limited to educational purposes.  This exception is also interpreted to be
required to meet the same conditions as in Article 22.
(3) Article 25 (Quotations from works made public)
This exception is permitted under the following conditions:
- the work has already been made public;
- quotations are being made for the purpose of news reports, criticism, education,
research, etc.
- quotations are being made within a reasonable limit; and
- quotations are compatible with fair practices.
(4) Article 26 (Public performances and broadcasting for non-profit purposes)
This exception of Article 26(1) is allowed under the following conditions:
- the performance should be done for non-profit purposes;
- no fee should be charged to the audience, spectators or third persons; andIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 33
- the performers should not receive any payment.
On the other hand, the public performance of commercial phonograms of cinematographic
works as stipulated in Article 26(2) is not allowed in the cases that are prescribed in the Presidential
Decree. For such cases, please refer to Korea's response to Question 6 of the EC.
(5) Article 27 (Reproduction for private use)
Reproduction for private use is allowed, as long as the reproduction is:
- used for non-profit purposes;
- used within the confines of family or the equivalent thereto or used solely for personal
use; and
- made by the user himself.
(6) Article 28 (Reproduction by libraries, etc.)
This exception is allowed, as long as the reproduction is made by the library itself.  And this
exception is limited to three cases:
- where there is a request from a user for a reproduction, for the purpose of his own
research and study (in this case, a single copy of a part of a work is provided);
- where it is necessary for libraries to reproduce work for the purpose of preserving
their materials; and
- where there is a request from other libraries for works that are out of print or
unavailable.
(7) Article 31 (Temporary sound or visual r ecordings by broadcasting organizations)
This exception is allowed, as long as the sound or visual recordings of a work is:
- made by the broadcasting organization itself;
- for the purpose of its own broadcasting activities;- made by the means of its own facilities; and
- made on a temporary basis.
B. Please provide the same explanation with regard to each of the exceptions set forth in
Article 12 of the Computer Programs Protection Act (CPPA), including the new Article 12.6
and revised Article 12.4 (effective 28 July 2000).
Article 12 of the Computer Program Protection Act pertains to the exceptions to computer
program copyright that are allowed in certain cases. For the purpose of explanation, such cases may
be divided into four categories:
(i) The first one is a case where reproduction is required for a trial;(ii) The second case is where reproduction is necessary for educational purposes. This category
of exception is applied where a computer program is  used for an educational purpose in educational
institutions, where a computer program is inserted in  books for  curricula in high schools or schools of
lower level; and where a computer program is used for an entrance examination or testing purposes.
This exception is allowed under strictly limited conditions and with due compensation;IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 34
(iii) The third category is where it is impossible, in effect, to detect the otherwise illegal use of
the computer program right, specifically where a computer program is reproduced at a private
residence or a limited place equivalent to it.  [This provision of the Computer Program Protection Act
was revised recently and effective July 2000];
(iv) Lastly, exceptions to the computer program copyright are allowed where it is necessary to
identify program algorithms and other specific elements of a program for the purposes of analysis,
research or teaching [a new provision of the Computer Program Protection Act, effective July 2000].
A similar exception is found in Article 5 of the EC Directive on the Legal Protection of Computer
Programs and Article 107 (Fair Use) of the US Copyright Act.
These provisions are carefully stipulated and strictly interpreted in conformity with the
provisions in international treaties, such as Article 9(2) of the Berne Convention, which allows
limitations on the reproduction of works, "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," and Article 13 of the TRIPS Agreement, which allows limitations and exceptions.
C. Regarding Article 12.4 of the CPPA and Arti cle 27 of the Copyright Act, what locations
are considered "equivalent to" a private residence for purposes of applying the private copying
exception?
Article 12(4) of the CPPA contains the phrase "a private residence or other limited places
equivalent thereto."  Although this new expression is not different in its legal meaning from the one
used before the amendment, this particular provisi on of the CPPA will be revised to adopt the former
wording, by deleting the term "equivalent thereto".
On the other hand, in Article 27 of the Copyright Act, the phrase "within the confines of
family or the equivalent thereto," is interpreted to concern only family members and relatives,
regardless of where such reproduction is made.
These two provisions, being those of exceptions, are interpreted narrowly.
D. Please explain how Article 26.2 of the Copyright Act is applied to unauthorized public
showings of videocassettes or video compact disk s that have been distributed for home use only.
Article 26(2) of the Copyright Act is not applied to this case because this provision concerns
public showings of phonograms and cinematographic works that are not accompanied with specific
conditions. In a case where any specific condition for distribution, such as distribution for home useonly, is contained in a contract between the right holder and the users of such works, such a condition
prevails over this exception clause.
E. Regarding Article 28.2 of the Copyright Act, as amended effective 1 July 2000, please
explain what "necessary actions" or "appropriat e measures" libraries are expected to take in
connection with their unauthorized reproduction of works and their transmission within the
library premises and to other libraries, and whet her the applicability of this exception depends
upon fulfilment of these actions or measures.
Article 3 bis of the Enforcement Decree of the Copyright Act, that was amended to be
effective 27 July 2000, stipulates the necessary measures for protecting rights in the case of digital
reproduction and transmission by libraries under Article 28(2) of the Copyright Act.
First of all, the following technical measures are required to prevent illegal use:IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 35
- devices should be installed to prevent users from using works by means other than
temporary screen displays;
- encryption measures should be taken to prevent unauthorized users from using works;- appropriate measures should be taken to show that works were used by means other
than temporary screen displays or that the contents of works have been altered; and
- devices should be installed to prevent the use of digitalized media that have been
produced for sale.
In addition to the above technical measures, other measures should be taken, including the
affixing of warning signs on computers/screen displays and training of librarians to increase their
alertness against possible infringement of copyrights.
It should be noted that Article 3 of the Enforcement Decree limits the libraries that are
allowed for digital copying and transmitting under Article 28(2) of the Copyright Act to national
libraries and a limited number of libraries that are affiliated with certain research institutes that are
established by special legislation.  Further, Article 28(2) of the Copyright Act is interpreted as not
allowing copied works to be transmitted out of library premises, printed by computers or stored in
computer memory devices in the library.
2. Articles 47 through 49 provide for compul sory licences to be granted, in certain
circumstances, by the Ministry of Culture and Tourism as prescribed by Presidential Decree.
Please explain in detail the manner in which each of these Articles is exercised and what, if any,
remedy the copyright owner has if it is diss atisfied with the comp ensation prescribed.
The compulsory licence system operates under strict procedural conditions aimed at  ensuring
that the applicant has made considerable efforts to identify the right holder and that there is
transparency in the compensation under Articles 47, 48 and 50 of the Copyright Act (Article 49 was
abolished as of 6 December 1995):
(i) when applying for the compulsory licence, an applicant should submit documents
showing, inter alia , that the work has already been made public, that the identity or
whereabouts of the right holder could not be established, the basis for the calculation
of the proposed compensation, and/or the circumstances where an agreement could
not be reached through consultations, if any, with the right holder.  However, the
Minister of Culture and Tourism may reject the application for a compulsory licence,if, for example, the objective of the application can be achieved by other means;
(ii) the right holder should be given an opportunity to state his opinion on an application
for a certain period of time;
(iii) compensation should be publicly announced. "Just compensation", as stipulated in
Article 23(3) of the Constitution, should be paid to the right holder.  In a case where
the payment of compensation cannot be made directly to the right holder, it should be
deposited at a designated depository with a notice to the person who is entitled to
receive the deposit;
(iv) when a compulsory licence is granted, the user should indicate on the licensed work
that the compulsory licence has been approved, and provide the date when the
approval was issued;IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 36
(v) when the copyright holder is dissatisfied with the compensation, he may file an
administrative suit against the government.
Follow-up question:
In Question 2, the United States asked Korea to explain in detail the manner in which
Articles 47 through 49 of the Copyright Act provide for compulsory licences to be granted, and
to describe what remedy a copyright owner has if he is dissatisfied with the compensation
prescribed.  Please respond with respect to a similar provision found in Article 18 of the CPPA.
(i) When applying for a compulsory licence for a computer program, an applicant should
submit documents showing that the identity or whereabouts of the right holder could
not be established, that the applicant cannot achieve his or her business without using
the computer program, and/or the basis for the calculation of the proposed
compensation. The documents should be made public for at least 30 days, during
which time, the right holder or an interested party can submit his opinion to theMinister of Information and Communication.
(ii) The Minister of Information and Communi cation should reject the application where:
(1) the objective of the application can be achieved by other means,
(2) the application has false statements of fact, and/or
(3) the identity or whereabouts of the right holder can be established.
(iii) When the payment of compensation cannot be made directly to the right holder, it
should be deposited at a designated depository with a notice to the person who isentitled to receive the deposit.
(iv) When a compulsory licence is granted, the user should indicate on the licensed work
that the compulsory license has been approved, and provide the date when the
approval was issued.
3. Article 52 of Korea's copyright law requires that transfers of an author's economic
rights, including the right of publication (Artic les 58 and 60), be registered to be effective
against third parties. This registration requirement appears to be inconsistent with Article 5(2)
of the Berne Convention.  Please explain the steps being taken with regard to Article 52 to
ensure that there are no formalities imposed on author's enjoyment and exercise of their rights.
The Copyright Act provides in Article 10(2) that "the copyright shall commence from the
time of completing a work, regardless of the fulfilment of any procedure or formality".  It is evident,
therefore, that no formality is required in conf ormity with Article 5(2) of the Berne Convention.
However, the transfer of an author's economic right cannot be effective against any third party
without a registration of the right (Article 52).  Registration is only required to claim the transferred
rights effectively against a third party.  In other words, registration is required only for the sake of
protecting the legal rights of a transferee against a third party, thereby securing the legal validity of
the copyright transactions.  However, this does not mean that registration is a condition for the legal
validity of such a transfer.  It should be noted the transfer becomes legally valid only through anagreement between the transferor and the transferee, regardless of registration.
Follow-up question:IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 37
In Question 3, the United States asked Korea to explain the steps being taken to ensure
that Article 52 of the Copyright Act, which req uires that transfers of an author's economic
rights be registered to be effective against third parties, is consistent with Article 5(2) of the
Berne Convention, which requires that no form alities be imposed on authors' enjoyment and
exercise of their rights. Please respond with respect to a similar provision (applicable to
computer programs) found in Article 26.1 of the CPPA.
As explained in Korea's response to quest ion 6 posed by the United States, a computer
program copyright becomes legally valid upon its creation, without requiring any formality.
Registration of a transfer of rights is required under Article 24 of the CPPA (Article 26 of the revised
CPPA) only to protect the legal rights of a transferee vis-à-vis third persons and thereby secure thelegal certainty of the transfer of the computer program copyright. It should be stressed that
registration is not required for the legal validity of such a transfer.  The transfer of a computer
program copyright can be made legally effective only through an agreement between the transferor
and the transferee, without any required formalities or procedures. Therefore, this provision is
consistent with Article 5(2) of the Berne Convention.
4. Article 65-2(1) of Korea's copyright law gi ves performers whose wo rk is recorded in a
phonogram the right to authorize the lendin g of the phonogram for commercial purposes.
Article 67-2(1) gives phonogram producers the right to authorize lending of their phonograms
for commercial purposes.  Please explain how thes e rights are to be exercised in the event the
performer did not self-produce the phonogram on which the performer's performance is
recorded.
The two rights are separate and independent.  Therefore, any person who wants to rent  a
phonogram is required to obtain permission from both right holders.
5. The translation of Article 16(2) of the Computer Programs Protection Act appears to be
inaccurate if that provision is intended to be similar to the provisions of Article 43(2) of the
copyright law.  Could you please verify that the provision is intended to mean that one may not
lend the original or a copy of a protected computer program without the permission of the
copyright owner.
The rental right of a computer program is not stipulated in Article 16(2) but in Article 16-2(2)
of the Computer Programs Protection Act.  This prov ision stipulates that if any program is to be lent
for a profit-making purpose, the copyright owner of the program should permit the rental.  Therefore,
it is confirmed that no one may lend the original or a copy of a protected computer program without
the permission of the copyright owner.  If any person violates this provision, the right holder canrequest an injunction (Article 25), or claim for damages against the infringer (Article 27).
6. Article 24 of the Computer Programs Protection Act requires that transfer of a
computer program copyright be registered if it is  to be applicable to third parties.  Please
explain the steps being taken with regard to Arti cle 24 to ensure that there are no formalities
imposed on author's enjoyment and exercise of their rights.
The registration of a transfer is required only for the sake of protecting the legal rights of a
transferee, which thereby secures the legal stability of the transactions of computer program
copyright.  Registration is not a condition for the legal validity of such a transfer.  The transfer ofcomputer program copyright becomes legally effective only through an agreement between the
transferor and the transferee, without the requirement of any formalities or procedures.
7. In relation to the Addendum to the copyright law of 6 December 1995, please explain in
detail how protection has been restored for works, including computer programs, that were inIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 38
the public domain in Korea without having a full term of protection there but which are still
protected in their country of origin.
The current Copyright Act grants protection to foreign works as well as Korean works whose
author died after 1 January 1957.  The term of this protection is based on the addendum to the current
Copyright Act.  This addendum stipulates that the copyright in works of foreigners and  the rights of
foreign performers of phonograms and producers of phonograms, which were published before
1 July 1996 and were to be newly protected by this amendment, shall be protected for the remaining
period of protection, which would have been recognized if such works had been protected in Korea.
Given the following history of Korean copyright legislation, the phrase, "protection, which would
have been recognized if such works had been protected in Korea" means that foreign works whoseauthor died after 1 January 1957 are protected, like Korean works.
Under the old Copyright Act, which was enacted for the first time in 1957 and remained
effective until 1987, only Korean copyright works were protected for life plus 30 years. This Act
rendered Korean works whose author had died before 1 January 1957 to have fallen into the publicdomain by 1987.
In 1987, the Copyright Act was amended to stipulate the protection of copyright for life plus
50 years.  Therefore, under this Act, prolonged protection (i.e., life plus 50 years) was provided to
Korean copyright works whose author died after 1 January 1957, because these works were yet to fallin the public domain.  For foreign works, protection was effective as of 1987.
Under the current Copyright Act, which took effect on 1 July 1996, foreign works began to
receive retroactive protection.  However, this retroactive protection is provided for those foreign
works whose author died after 1 January 1957, since Korean works enjoy the same terms ofprotection.  If we protect foreigners' works for the full term of protection (50 years), we will be
discriminating against Korean works.
B. T
RADEMARKS
8. Article 97 bis(2), which is included in the section regarding penal provisions, provides
that infringing goods may not be seized if th e trademarks may be easily detached without
affecting the function of the goods.  Please ex plain whether the infringer is allowed to retain
these goods or if they are used for another pu rpose, such as, as a contribution to charity.
When the court decides not to confiscate the infringing goods, the disposition of such goods is
left to the discretion of the court.  The court will exercise its discretion only in accordance with the
provisions of Article 46 of the TRIPS Agreement.  It should be added, however, that no court decision
in this regard has been made so far.
C. GEOGRAPHICAL INDICATIONS
9.  What provisions of Korea's law or regulations provide for the recognition of
geographical indications required by Articles 22.2 and 23.1 of the TRIPS Agreement?  Pleaseprovide citations to those laws and, if the texts of the laws have not been notified to the WTO,
please notify them pursuant to Article 63.2.
Articles 2(1)(iii) and 2(1)(iv) of the Unfair Competition Prevention and Trade Secret
Protection Act, Article 3 of the Fair Labelling and Advertising Act, and Article 9 of the Agro-fisheriesProduct Quality Management Act provide the legal means for protecting geographical indications as
required by Article 22.2 of the TRIPS Agreement.  The text of the said laws were duly notified to the
WTO pursuant to Article 63.2 of the TRIPS Agreement.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 39
The strengthened protection of geographical indications for wines and spirits, as required by
Article 23.1 of the TRIPS Agreement, is provided by the Amendment to the Notice Concerning
Liquor Labelling.
10. In determining whether recognition should be given a geographical indication, what
criteria are considered?
In Article 15 of the Enforcement Decree of the Agro-fisheries Product Quality Management
Act, the following criteria are provided for determining whether a geographical indication is
recognized:
(i) whether the superior quality of the product concerned is widely recognized both
within Korea and abroad;
(ii) whether the quality of the product is of the highest grade as determined in accordance
with the standards specified under Article 4 of the Agro-Fisheries Product Quality
Management Act.  However, in the case where such standards are not specified under
the Act for the product concerned, then the required standard shall be that of the
highest grade as given under other laws and regulations, or that of the highest grade
as determined through customary use in the respective industry;
(iii) whether the reputation, quality, and other special characteristics of the product
concerned can be attributed to the natural environment and the people from the
specific geographic area;
(iv) whether the product concerned is produced or processed within the area identified by
the geographical indication;  and
(v) other standards that are deemed necessary by the Minister of Agriculture and Forestry
and the Minister of Maritime Affairs and Fisheries, in regards to geographical
indications.
11.  Please describe the manner in which the higher level of protection required for wines
and spirits under Article 23.2 of the TRIPS Agreement is provided and provide examples of
such products and the law under which they are protected.
Article 7(1)(xiv) of the Trade Marks Act provides that if a trademark consists of geographical
indications or includes such indications with rega rd to the origin of wines or spirits in a Member
country of the World Trade Organization, and is used in connection with wines, spirits, or other
similar goods, such a trademark may not be registered.  If the violating trademarks are found to have
been registered, they will be invalidated.
12. What are the competent authorities where the protection of a geographical indication
can be obtained?
Geographical indications for agricultural and fisheries products and their processed products
are protected by the Ministry of Agriculture and Forestry.  Any matter concerning trademarks thatcontain or consist of geographical indications is dealt with by the Korean Industrial Property Office.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 40
D. INDUSTRIAL DESIGNS
13. Please describe the procedure that must be followed to obtain protection for textile
designs and cite to the provisions of law under which such protection is provided.
Korea's registration system for designs is based on the principle of substantial examination.
However, in light of the fashion-sensitive nature and the short life cycle of textiles, an expedited
process for the registration of textile designs is in place.  According to Article 9(6) of the Design Act
and Article 9(3) of its Ordinance, substantial examination is not required.  An examination is required
only to determine whether the application for registration satisfies the formal requirements of
registration and whether the design has the possibility of disrupting public morals.
E. PATENTS
14.  Article 95 provides for the effects on a patent right that has been extended, as provided
for under Article 89 as a result of an extended period of time required for procedures to obtain
marketing approval for the patented product.  Please explain in greater detail what patent
rights apply and with respect to what actions.
An extension of the term of protection for a patent right is applicable only to pharmaceutical
products and agricultural chemical products that are required to go through certain approval
procedures for marketing.  Specifically, these products are:
(i) pharmaceutical inventions (with respect to substance, process, use, composition) that
require product approval under Articles 26(1) or 34(1) of the Pharmaceutical Affairs
Act;  and
(ii) agrochemicals or raw materials-inventions (with respect to substance, process, use,
composition) that require registration under Articles 8(1), 16(1), or 17(1) of the
Agrochemicals Control Act.
Pursuant to Article 95 of the Patent Act, the effects of an extension of a patent right apply
only to the working of the patented invention with respect to these products.  Please note that the
definition of "working" is provided in Article 2 of the Patent Act.
15. Article 96(2) of the patent law states that the effects of the patent right for inventions or
medicines manufactured by mixing two or more medicines, or for inventions of processes for
manufacturing medicines by mixing two or more medicines, shall not extend to the acts of
manufacturing medicines in accordance with th e Pharmaceutical Affairs Act or to medicines
manufactured by such acts.  Please explain in detail what manufacturing authorization isprovided by the Pharmaceutical Affairs Act.
It should be noted that the relevant part of Article 96(2) of the Patent Act should have been
translated into "shall not extend to the acts of dispensing  medicines in accordance with the
Pharmaceutical Affairs Law or to medicines prepared  by such acts" (emphasis added).  The patent
right referred to in the question does not have an effect on the act of dispensing medicines by
pharmacists who are licensed under the Pharmaceutical Affairs Act.  This is in full conformity with
Articles 8(1) and 30 of the TRIPS Agreement.
16. Article 106 of the patent law provides for the expropriation of patent rights if an
invention is necessary for national defense in time of war.  Paragraph 2 of the Article states that
the rights to the invention, other than the patent right, expire if the patent right is expropriated.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 41
Please explain why it is necessary for the inventor 's rights to expire, since anything from soap to
shoes to sealing wax could be determined to be necessary for national defense in time of war.
If a patent is expropriated by the government for the purpose of national defense in time of
war, the government may work the patented invention exclusively.  (In such an event, of course, the
government should pay reasonable compensation to  the patentee.)  For the government to use the
patented invention exclusively, the rights to work the patented invention, as held by the exclusive
licensee and the non-exclusive licensee, will end.  In light of this, "the rights to the invention other
than the patent right", as stated in Article 106(2) of the Patent Act, means "the exclusive licensee's and
the non-exclusive licensee's rights to work the invention".  It does not mean that the patentee's patent
right itself will expire as well.
17.  Article 107 of the patent law provides for compulsory licensing in a number of
circumstances.  The provision does say that request for such a licence can only be made if
consultation with the patentee or exclusive licen see is not possible or no agreement is reached
from such consultations.  What steps are taken to ensure that the app licant for the licence has
sought an agreement with the patentee or exclusive licensee on reasonable commercial terms?
In order to ensure that an applicant who wishes to obtain a compulsory licence has sought an
agreement with the patentee or exclusive licensee on reasonable commercial terms, it is required that
the following steps be taken:
(i) he should first offer to the patentee or exclusive licensee reasonable conditions for
working the patented invention;
(ii) he should make reasonable efforts to reach an agreement with the patentee or
exclusive licensee on the basis of these conditions;  and
(iii) if an agreement could be not reached, he should present to the KIPO evidence
demonstrating that reasonable efforts have been exhausted.
As to date, there have been no such application for a compulsory licence.
18. Article 116 provides that a patent may be cancelled, ex officio or on the request of any
interested party, if it has not been worked cont inuously from the date the compulsory licence,
provided for under Article 107, is issued.  Please describe the provisions available that permit
the patentee or the party that obtained the licence under Article 107 to show that there are
justifiable reasons for the lack of working.
Before a decision to cancel a patent right to an invention is made by the KIPO, a notice is
delivered to the patentee, the exclusive licensee and other persons having any legal right related to the
patent, to give them an opportunity to submit comm ents within a time limit, according to Article 108
of the Patent Act.  Through this procedure, the related parties are given an opportunity to formallysubmit their justifiable reasons for the lack of working.
19. Chapter IX of the Patent Law gives the Pate nt Court of Korea original jurisdiction over
infringement actions and appeals from decisi ons of the Korean Industrial Property Office.
Please describe in detail the make up of the court and indicate how judges are selected andappointed to serve on the court.
A dispute over intellectual property rights is dealt with by different courts, depending on the
nature of the dispute.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 42
The Patent Court has original jurisdiction for any action concerning a trial decision of KIPO
in accordance with Article 186(1) of the Patent Act, Article 55 of the Utility Act, Article 86(2) of the
Trade Marks Act, Article 75 of the Design Act, and Article 105 of the Seed Industry Act.  A final
appeal of the Patent Court's ruling is filed with the Supreme Court.
On the other hand, civil disputes and criminal prosecution over infringement actions are
generally dealt with by ordinary courts, not the Patent Court.  (See Korea's answers to Questions 23
and 47).
A case before the Patent Court is dealt with by a collegiate division comprised of three
judges. Like other ordinary courts, judges are appointed to the Patent Court in accordance withArticle 5(2) of the Court Organization Act.  Currently, there are three collegiate divisions in the Patent
Court, each with a Chief Judge appointed to act as Presiding Judge for each collegiate.
F. P
ROTECTION OF UNDISCLOSED INFORMATION
20.  Please describe in detail the manner in which protection is provided for test data
regarding pharmaceutical and agricultural chemic al products in order to obtain marketing
approval in the territory of the Republic of Korea.
Data submitted to the government authorities for marketing approval are protected in
accordance with Article 27 of the Agrochemicals Control Act, Articles 6 and 9 of the EnforcementDecree of the Agrochemicals Control Act, Article 72-9 of the Pharmaceutical Affairs Act and
Article 5(13) of the Pharmaceutical Safety and Efficacy Review Regulation. Specifically, any
submitted undisclosed tests or data are prohibited from being disclosed and are protected against
unfair commercial use.
21. Chapter III of Korea's Unfair Competition Prevention and Trade Secret Protection Act
does not seem to provide those in possession of undisclosed information, comprised of data that
must be submitted to regulatory authorities to  obtain marketing approval for pharmaceutical
or agricultural chemical products, with the ability to take action against government officials of
such regulatory authorities who disclose information in a manner inconsistent with Article 39.3.
Please describe the provisions of Korea's laws that would prevent such disclosure or would
provide a remedy should disclosure occur.
Data submitted to the government authorities for the marketing approval of pharmaceutical or
agricultural chemical products are prohibited from being disclosed to the public when the person who
submitted such data requests the protection of the data.  However, when authorities see the need to
disclose the data to the public, the data may be disclosed, which is in conformity with Article 39(3) ofthe TRIPS Agreement (Article 27 of the Agrochemicals Control Act and Article 72-9 of the
Pharmaceutical Affairs Act).
When there is a violation of these provisions, a penalty of imprisonment for up to three years
or a fine not exceeding ten million won (for pharmaceutical products) or 15 million won (forAgrochemical products) is imposed under Article 75 of the Pharmaceutical Affairs Act and Article 32
of the Agrochemicals Control Act.
22. Are other applicants for ma rketing approval for their own versions of a previously
approved pharmaceutical or agricultural chemical products permitted to rely on data submittedby the earlier applicant.  If so, when does such reliance become possible?
Articles 6 and 9 of the Enforcement Decree of the Agrochemicals Control Act and
Article 5(13) of the Pharmaceutical Safety and Efficacy Review Regulation prohibit such reliance.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 43
Only with the permission of the earlier applicant can other applicants rely on data submitted by the
earlier applicant.
G. ENFORCEMENT – GENERAL OBLIGATIONS
Additional questions:
A. Please explain how Korea complies with Article 41.2 of the TRIPS Agreement, in light of
the requirement (see Article 107 of the Civil Procedure Code) that foreign plaintiffs post cash
security, rather than bonds, to obtain injunc tions, which might be considered a burdensome
limitation on the availa bility of injunctions.
Articles 112 and 475 of the Code of Civil Procedure provide that, when an injunction is
applied for, money, other securities as the court deems appropriate or a document of payment which
guarantees the consignment contract should be deposited. The "other securities and documents"
referred to in these Articles, which may also include bonds, can be produced by foreigners without
facing more difficulties than Korean nationals do.
B. Under what circumstances are judicial decisions in criminal infringement cases made
available to the right holders concerned? How does Korea comply with the transparency
obligations of Article 41.3 of the TRIPS Agreement, especially with regard to criminal
prosecutions of  software piracy?
According to Article 26(2) of the Enforcement Decree of the Code of Penal Procedure, a
certified copy of the criminal ruling given by a court is delivered to the right holders upon application.
H. ENFORCEMENT - CIVIL AND ADMINISTRATIVE PROCEDURES AND REMEDIES7
23. (a) Please clarify whether intellectual property infringement cases involving amounts
exceeding 30,000,000 won would be adjudicated before the collegiate division instead of the
District Court.
Before answering this question, please note that the corrigendum to the Checklist
(IP/N/6/KOR/1/Corr.1) states that the corr ect amount should be 50,000,000 won, not 30,000,000 won.
An intellectual property infringement case (and, for that matter, other cases as well) that
involves amounts exceeding 50,000,000 won will fall under the original jurisdiction of a collegiate
division of a District Court. It should be noted here that the collegiate division is not a judicial entityseparate from the District Court, but rather a constituent unit thereof.
(b) Please describe in detail the procedures for filing and appealing intellectual property
infringement cases before the District, High and Supreme Courts.
The answer to this question is provided in the following manner:
1) For cases involving amounts exceeding 50,000,000 won:
District Court (collegiate division) -- appeal --> High Court -- final appeal -->
Supreme Court
2) For cases involving amounts of 50,000,000 won or less:
                                                     
7 Questions based on Korea's responses to the Checklist of Issues on Enforcement (IP/N/6/KOR/1).IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 44
District Court (single judge) -- appeal --> District Court (collegiate division) -- final
appeal --> Supreme Court
24. Please explain the circumstances under which the Copyright Management Services have
the authority to assert intellectual property righ ts and appear in court on behalf of copyright
holders.  Describe in detail the nature of their duties.
The scope of authority held by copyright management services is determined by their
contracts with the right holders.  Please see the corrigendum to the Checklist in this regard.
25. Is it necessary in respect to each form of  intellectual property for foreigners to be
represented by legal counsel from Korea before the courts in Korea?
There is no law that prohibits parties to the court from proceeding without  representation
from legal counsel.  Therefore, any person, including a foreigner, can represent himself  before thecourt, if he decides to do so.  However, if a party decides to be represented by legal counsel, legal
counsel should be a lawyer licensed under Korean law.
26. Please clarify the circumstances under which a person would be justified in refusing to
produce a document in an intellec tual property infringing case.
The circumstances under which the holder of a document cannot refuse to produce requested
documents are described in the answer to Question 3 of the Checklist.  Apart from those
circumstances, the holder of a document can otherwise refuse to produce requested documents.
However, a proposed amendment to the Code of Civil Procedure, which is currently under
preparation, limits the circumstances that justify such a refusal to:
- cases where the provision of requested documents would result in the prosecution or
conviction of the holder or may bring disgrace to himself or his relatives, etc.;  and
- cases where the requested documents concern trade secrets or other confidential
information that was acquired during the course of performing professional duties.
The proposed amendment was announced in April for public comments and is expected to be
submitted to the National Assembly for approval during its regular session before the end of the year.
27.  Please elaborate on the procedures for prot ecting confidential information in intellectual
property infringement cases.
No procedure for providing the protection of confidential information in intellectual property
infringement cases is yet in place.  However, the Amendment to the Code of Civil Procedure, as
referred to in the answer to the previous question, provides that, when trade secrets are contained in
lawsuit records, a court may decide, on the request of the parties concerned, that an inspection or
reproduction of the confidential parts be allowed only for the parties concerned.
Follow-up question:
In response to Question 27, Korea stated that "[n]o procedure for providing the
protection of confidential information in intellectual property infringement cases is yet in
place."  Does Korea intend to provide such procedures in the near future? If so, when?IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 45
As already explained in our response to Question 26, an Amendment to the Code of Civil
Procedure is now under preparation in order to address Articles 42 and 43 of the TRIPS Agreement.
This Amendment has already gone through procedures for public comments.  It provides that, when
trade secrets are contained in lawsuit records, a court may decide, on the request of the partiesconcerned in the case, that an inspection or reproduction of the confidential parts should be allowed
only by the parties concerned.  The Amendment is expected to be submitted to the National Assembly
for approval during its regular session before the end of the year.
Additional question: Please explain how Korea  complies with Article 44.1 of the TRIPS
Agreement, which requires judicial authorities to have the authority to issue effective
injunctions, and in particular, please explain whether such injunctions have been enforced inthe past.
Under the current law, a court can order infringers of IPRs to stop the infringement, as
mentioned in Korea's response to question 5 in the Checklist of Issues on Enforcement.  Such an order
may include the prohibition of making, selling, lending and distributing the infringing goods and theconfiscation of those goods.  This means that a court can order, upon application from a right holder,
an injunction to prevent the entry of infringing goods into channels of commerce immediately after
the customs clearance of such goods.  However, there have been only a few such applications so far.
28. Please identify each of the costs (i.e. attorn ey fees, etc.) in a lawsuit which the infringing
party could be ordered to pay pursuant to CCP Article 89.
Chapter III of the Code of Civil Procedure, to which Article 89 belongs, provides only for
the costs of a lawsuit.  However, there is no specific provision that governs the scope of such costs.
Normally, the costs of lawsuits may be grouped in to two categories:  (1) costs incurred for the
court procedure and (2) costs borne by the parties during the lawsuit process.  The first category
covers the costs paid by the parties to the state.  This includes filing fees paid by the parties and costs
paid by the court (such as costs of delivering court documents, per diem and travel costs for witnesses,
experts or interpreters, and costs for the inspection by judges, etc).  The second category covers
expenditures paid by the parties to persons other than the state.  This includes costs incurred by the
parties themselves in preparing documents, per diem and travel costs paid for the parties themselvesand their representatives, and lawyer fees.  The second category of lawsuit costs shall be borne by the
losing party.  It is to be noted that lawyer fees are included in the lawsuit costs borne by the losing
party and that the amount of  lawyer fees is an amount not exceeding the ceiling stipulated in the
Supreme Court Regulations.
29. Please explain what happens to goods determined to be infringing if the rights holder
does not request that they be destroyed?
When the right holder does not request that such goods be destroyed, no measure can be
ordered by the court. Therefore, if the right holder wishes to prevent further infringement on hisrights, it is his responsibility to request the court to take such a measure.
30. What is the final disposition of equipment used in infringing activity when a judge
orders it removed?
Upon orders from the judge, bailiffs destroy the equipment in question.
31. Describe some of the other measures judg es can order to prevent further infringing
activity.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 46
The list of measures provided in the answer to Question 5 of the Checklist is exhaustive.
There are no other measures that the court can order.
32. Please describe the measures that a patent holder could require an infringing party to
take to restore his credit and reputation lost due to the infringing activity.
The right holder may require, for example, an infringing party to place in local newspapers a
notice that summarizes the court's ruling, which found him as having infringed the intellectual
property rights of the right holder and thus impaired his honour and reputation.
33. Please clarify whether the indemnification provisions in Articles 750 to 766 apply to
defendants in trademark and patent infringement cases.
Articles 750 to 766 of the Civil Code contain the general principle for torts. Therefore, these
provisions are applicable to trademark and patent infringement cases as well.
34. Please describe the basis on which compensation is determined under Copyright Act
Article 91.4.
It is not entirely clear as to what is being asked here. It is assumed that this question is asking
about the scope of damages which would constitute the basis of compensation arising from unlawfulacts.  According to Article 763 of the Civil Code, the amount of compensation in this case is based on
damages that have, to a considerable degree, a causal relationship with the unlawful acts.
If the question concerns the basis on which the amount of compensation for the damages
arising from unlawful acts is calculated, please refer to our response to Question 5 of the Checklist.
35. Please clarify whether Section 2 of the National Compensation Act applies to public
officials performing official duties within the context of intellectual property rights cases?
Yes, it does.
36. Please provide an estimate of the length and cost of infringement proceedings regarding
each form of intellectual property in Korea.
Unfortunately, no data is available in this regard.
I. E
NFORCEMENT - PROVISIONAL MEASURES
37. Please elaborate on how the procedures pertaining to provisional attachment and
provisional disposition apply in trademark,  copyright and patent infringement cases.
Generally speaking, the same procedures for provisional relief, as prescribed in the Civil
Code, apply also to such intellectual property infr ingement cases (See our response to Question 10 of
the Checklist of Issues on Enforcement).IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 47
Follow-up question:
How long does it typically take to obtain a provisional injunction in a civil copyright
infringement case?  How often are such provisional orders issued on an ex parte basis in civil
cases?  Is it possible to obtain a civil ex parte order for the seizure of infringing materials and/or
the preservation of evidence with out having the judge himself or herself supervise the execution
of the order in person?  Describe how Korea fulfils its obligations under Article 50 to make
ex parte provisional measures available in infringement cases.
It is difficult to tell how long it would take to obtain a provisional injunction. It varies from
case to case.  In certain cases, it might take only two or three days.
The number of provisional orders that were given on an ex parte basis, i.e., without a hearing
from the other party, are:
276 orders out of a total of 414 in 1996,
376 orders out of a total of 441 in 1997,
555 orders out of a total of 700 cases in 1998 and
448 orders out of a total of 732 cases in 1999.
Under Korean law, the execution of an injunction order must be carried out under the court's
control, for example, by court bailiffs.
For the implementation of Article 50 of the TRIPS Agreement in Korea, Articles 700(1) and
717(2) of the Code of Civil Procedure stipulate that the decisions by courts in regard to applications
for provisional measures may be rendered without pleadings.
J. ENFORCEMENT - SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
38. Please list the other types of infringements of intellectual property subject to
investigation and control under Article 14 of the Act on Judicial Police and Their Rights.
As indicated in the corrigendum to the Checklist8, Article 14 of the Act on Judicial Police and
Their Rights, as mentioned in the answer to Question 15 of the Checklist, should actually be
Article 6(14) of the same Act.
Under the said article, the power of investigation into the infringement of all categories of
intellectual property during the process of customs clearance for importation and exportation is vested
with customs officials. They are empowered to in vestigate into the suspected infringement of the
intellectual property rights protected in the Trade Marks Act, Copyright Act as well as the Computer
Program Protection Act, Unfair Competition Preven tion and Trade Secret Protection Act, Patent Act
and Design Act.
39. Do the procedures of Articles 146-2 of the Customs Act or Articles 127-6 through 127-9
of the Enforcement Decree of the Customs Act apply to infringing goods shipped in transit?
No, these provisions are not applicable to infringing goods in transit.
40. Please describe the information required in the application form and the evidence
necessary to demonstrate proof of ownership to  obtain suspension of the release of goods.
                                                     
8 Document IP/N/6/KOR/1/Corr.1.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 48
Article 127-6 of the Enforcement Decree of the Customs Act requires the following
information in the application form:
(i) name of the product, exporter or importe r, exporting country or importing country;
(ii) subject matter and scope of the trademark/copyright;(iii) reason for request;  and(iv) evidence substantiating the claim of infringement.
As proof of ownership, a certified copy of the certificate of trademark registration or a
document demonstrating that the person rightly owns the copyright should be presented.
41. What kinds of assurances (i.e. bond) qualify as sufficient collateral to obtain  suspension
of the release of infringing goods?
Under Article 21(1) of the Customs Act, the foll owing items can be deposited as collateral for
this purpose:
- money;- bonds and securities issued by the government or a local government;- bank guarantee for payment;  or
- stocks listed on the Korean Stock Exchange.
42. Does the importer also have the right to examine and take a sample of suspect goods
pursuant to Article 127-10 of the Enforcement Decree of the Customs Act?
Yes, the importer, being a trader as specified in the answer to Question 16 of the Checklist,
has the same right as the right holder.
43. Please describe the judicial process for determining that imported or exported goods are
infringing and how is the decision communicated to Customs officials?
According to Article 127-10 of the Enforcement Decree of the Customs Act, it is Customs
officials who first determine whether imported or exported goods are infringing a copyright or
trademark.  When a formal complaint is filed with the court with regard to such a determination, the
court will then make a ruling.  There is no formal channel for transmitting the court's decision directly
to the Customs office, but a certified copy of the court's ruling can be presented by interested persons
at the Customs office to inform it of the decision.
44. When Customs officers suspend the release of goods acting on their own initiative,
without a request from the right holder, who ma kes the legal determination that the goods are
clearly infringing?
According to Article 172-3 of the Customs Act, customs officials have the authority to
determine that the goods are infringing and to suspend the release of such goods.  If the traders of
such goods are not satisfied with the customs official's decision, he may bring a lawsuit against the
Customs authorities.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 49
45. Please provide a detailed description of the procedures Customs officials use when they
act on their own initiative in intellectual property cases?
When goods are determined by customs officials as infringing a copyright or trademark, the
release of such goods is suspended.  In addition, the investigatory unit of the Customs office may
make an investigation into the case to find out wh ether any criminal acts are involved.  When criminal
acts are suspected of being involved, the prosecutor's office is informed.
46. How are goods disposed of which are confiscated pursuant to Article 97-2 of the Trade
Marks Right Act or Article 101 of the Copyright Act?
Such goods are normally destroyed by the prosecutor's office.
47. Can goods determined to be infringing be re-exported to the country of origin? If yes,
can they be re-exported in an unaltered state?
The answer is no, because all goods that are determined to be infringing should be
confiscated and destroyed, according to Article 97bis of the Trade Marks Act and Article 101 of the
Copyright Act.
K. ENFORCEMENT - CRIMINAL PROCEDURES
48. Clarify which judges at the District Court h ave authority to hear appeals in intellectual
property cases originally tried by a single judge of the District Court.
In such a case, the collegiate division (composed of three judges) of the District Court has
jurisdiction.
49. Specify which intellectual property infringement cases require a complaint from the
rights holder before they can be prosecuted?
For copyright (including computer programs), patent, and design infringement, a complaint is
required, in principle, before the infringement case can be prosecuted.  (A notable exception to this
requirement is a trademark infringement.)  Howeve r, there are a few cases where such a complaint is
not required.  For example, when a copyrighted wo rk is made public under the name of a person other
than the real author, no complaint is required for an investigation or prosecution to be made, as under
Article 99(3) of the Copyright Act.
Follow-up question:
What quantum of evidence is required to be presented by the rights holder before a
criminal investigation into software piracy wi ll be opened?  What quantum of evidence is
needed before a criminal prosecution of software piracy will be initiated?  For purposes of the
availability of criminal remedies against piracy on a commercial scale (Article 61 of the TRIPS
Agreement), what is the significance of the fact that piracy of computer programs is not
considered a "public offence" (see Article 48 of the CPPA)?
According to Article 195 of the Code of Pena l Procedure, a criminal investigation can be
initiated with reasonable suspicion.  However, for a criminal prosecution, more substantial evidenceshould be demonstrated.
The infringement of a computer program copyright can be investigated and prosecuted only
with complaints from the right holder because the infringement of a computer program copyright isIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 50
treated under Korean law as an infringement of private property rights, rather than as an offence
against the public fair trade order, as it is with tr ademarks.  However, in practice, where infringements
are so serious as to require prosecution, complaints from the right holder are invited by the
prosecutor's office through notification to the right holder in order to prosecute the case.
50. Please clarify whether fines and imprisonment are sanctions available in trademark
cases.
According to Article 93 of the Trade Marks Act, any person who has infringed a trademark is
subject to imprisonment for up to five years or a fine not exceeding 50,000,000 won.  A penalty of
both imprisonment and a fine is not available.
51. Under what circumstances will a fine v. imprisonment be ordered as the sanction in a
criminal case involving intellectual property?
As provided in Article 51 of the Penal Code, the judge has discretion in determining the kind
and severity of the penalty imposed, as within the limits stipulated in each intellectual property-related
law, taking into account various factors and circumstances.
52. Is three months the normal length of time it  takes to prosecute criminal cases involving
intellectual property?
When a public prosecutor investigates a complaint or accusation with regard to any case, he is
obligated, under Article 257 of the Code of Penal Procedure, to make a decision on whether to
prosecute within three months from the receipt of such a complaint or accusation. Normally the
investigation ends within three months, but it can be extended when the gravity or complexity of thecase requires so.
53. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated-circuit layout design, and trade secret
enforcement for each of the years 1996 and 1997, including the number of cases filed;
injunctions issued; infringing products seized;  infringing equipment seized;  cases resolved
(including settlement);  and the amount of damages awarded.
(1) 1996
- number of cases filed: 30
- injunctions issued: 414- cases resolved (including settlements):  15
(2) 1997- number of cases filed:  101
- injunctions issued:  441
- cases resolved (including settlements):  42
Data on the other items as listed in the question are not available.
54. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions, and th e amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 51
and any other information establishing that the criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
Please see the table in the Annex.
Follow-up question:
In Question 53, the United States asked Ko rea to provide statistical information related
to criminal enforcement in the area of copyri ght piracy and trademark infringement for 1996
and 1997, including the number of raids, prosecuti ons, convictions, and the amount of fines
and/or jail terms (including whether the fines we re paid and whether the jail term was actually
served or was suspended) and any other inform ation establishing that the criminal system
operates effectively to deter copyright piracy and trademark counterfeiting.  Please also provide
such statistics for the years 1998 and 1999, and please describe whether such statistical
information is ordinarily made public, and, if so, how rights holders may obtain it.
Please see the table in the Annex.
With regard to the public availability of statistical data on infringements, press releases are
issued when major IPR infringements have been investigated, and the Supreme Public Prosecutor's
Office publicizes on its websites the results of its enforcement activities, including statistical data onthe number of investigations and arrests, on a regular basis.
55. Please describe any new initiatives that are planned to improve enforcement of
intellectual property rights in Korea, particularly initiatives related to criminal enforcement.
The following laws have been amended to increase the degree of punishment and are
scheduled to take effect in July 2000:
- penalties for copyright infringement will increase from the current level of
imprisonment for up to three years and a fine not exceeding 30 million won to
imprisonment for up to five years and a fine not exceeding 50 million won
(Article 93(3) of the Amended Copyright Act to be effective 1 July 2000);
- any person who repeatedly infringes a computer program copyright will be subject to
harsher penalties i.e., imprisonment for up to five years or a fine not exceeding
70 million won, or both (Article 47 of the Amended Computer Program Protection
Act to be effective 29 July 2000);
- any person who circumvent technological protection measures or any person who
circulates devices and parts thereof that circumvent technical protection measures will
be subject to imprisonment for up to three years or a fine not exceeding 50 million
won (Article 46(1)(iii) of the Amended Computer Program Protection Act to beeffective 29 July 2000); and
- Officials of the Ministry of Information and Technology will have the authority to
collect, delete or destroy illegally acquired computer programs (Article 34 of the
Amended Computer Program Protection Act to be effective 29 July 2000).
In addition to amending the above mentioned intellectual property-related laws, the Korean
government will step up its campaigns against the infringement of intellectual property rights,  by
running a special enforcement team consisting of various related government agencies under theIP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 52
leadership of the Prosecutor's Office. The Korean go vernment will continue to make strenuous efforts
to improve the public's awareness of the importance of respecting intellectual property rights.IP/Q/KOR/1, IP/Q2/KOR/1,
IP/Q3/KOR/1, IP/Q4/KOR/1
Page 53
ANNEX
1996 1997 1998 1999
Number of raids
Copyright piracy 7444 7476 8163 10134
Trademark infringement 4067 4110 4461 6760
Number of prosecutions
Copyright piracy 884 775 1110 1490
Trademark infringement 3231 3402 3408 5316
Number of convictions
Copyright piracy 728 557 1022 1678
Trademark infringement 2717 2926 2936 4401
Amount of fines
Copyright piracy:
More than 10,000,000 won 0 0 1 4
5,000,000 - 10,000,000 won 0 0 7 14
1,000,000 - 5,000,000 won 88 74 122 170
Less than 1,000,000 won 612 458 834 1372
Trademark infringement:
More than 10,000,000 won 31 38 44 41
5,000,000 - 10,000,000 won 155 161 161 218
1,000,000 - 5,000,000 won 949 1171 1471 1985
Less than 1,000,000 won 714 879 950 1861
Jail terms
Copyright piracy:
More than 2 years 1 1 3 7
1 - 2 years 1 0 2 3
6 months - 1 years 2 1 0 0
Less than 6 months 0 0 0 0
Trademark infringement
More than 2 years 323 285 102 104
1 - 2 years 187 151 42 23
6 months - 1 years 356 231 5 7
Less than 6 months 0 1 0 0
*  Data on the other requested items are not available.
__________