RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/187
21 June 2000
(00-2528)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Korea to Questions posed by Australia,
Japan and the United States
By means of a communication from the Permanent Mission of the Republic of Korea, dated
13 June 2000, the Secretariat has received the following responses to questions posed by Australia,
Japan and the United States, as distributed in documents IP/C/W/177, IP/C/W/173 and IP/C/W/174
respectively.
_______________
AUSTRALIA1
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 limitations 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)
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
                                                     
1 Although some of the questions raised by Australia address issues that fall outside of the scope of the
TRIPS review exercise, answers are provided to th e extent possible for the sake of transparency.IP/C/W/187
Page 2
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 July 1, 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. 
TRADEMARKS
3. Are there any specific provisions in the Republic of Korea's laws and regulations, or any
significant judicial decisions, with bearing on th e 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 the 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?
A "conspicuous geographical name", as referred to in Article 6(1)(iv) of the Trademark 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 capital city,
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 thegeographical indications of wines and spirits that originate in WTO Members is to be rejected under
Article 7(1)(xiv) of the Trademark Act.
C. 
INDUSTRIAL DESIGNS
5. What amounts to "industrial applicability" for th e 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.IP/C/W/187
Page 3
"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 or iented 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 design 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 promoting
industrial 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?
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, c odified the intent of this ruling by stipulating
in Article 2(11-2) that applied artistic works, including designs, are protected as copyright workswhen they can be identified separately from the utilitarian aspect of the article for which they are
used.
D. 
PATENTS
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, intensive steps
and industrial applicability) and the requirement of being reproducible are satisfied.IP/C/W/187
Page 4
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 line
with 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 liable to 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?  Arethere any judicial findings or other legal guidance on the application of this provision in practice?
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.
12. In which circumstances (if any) is use without 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 administrative
decisions 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 or
other justifiable reasons as prescribed by the Enforcement Decree of the Patent Act.;IP/C/W/187
Page 5
- 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;
- 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 infringe another person’s earlier patented
invention, he must obtain the permission of the other party concerned before working his
patented invention.  However, if the owner of the earlier patent refuses to grant permission,without justifiable reasons for doing 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.
E. 
PROTECTION OF UNDISCLOSED INFORMATION AND DATA PROTECTION
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.IP/C/W/187
Page 6
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 the
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 pr otection of undisclosed information apply to
actions by or on behalf of the government, including 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, the Commissioner of the Korea
Food and Drug Administration can decide to disclose the data, where necessary to protect the public
interest.  This exception is envisaged to deal with an emergency situation which can only be addressed
through the disclosure of the data, which is in line 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 3 years or a
fine not exceeding 10 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. 
CONTROL 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 Trademark 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/C/W/187
Page 7
JAPAN
A. COPYRIGHT
1. Please explain how protection is provided for works, phonograms, performances and
broadcasts from other WTO Members under the Law on Copyright and Neighbouring Rights of Korea(hereinafter referred to as "Copyright and Ne ighbouring 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 the Berne 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 such 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 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 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 thefollowing history of the Korean copyright 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.IP/C/W/187
Page 8
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 public
domain 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 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
receive retroactive protection.  However, this retroactive protection is provided for those foreignworks 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.
4. Please explain whether protection of "computer programs" under the Copyright and
Neighbouring Rights Law covers computer programs in both source and object code, as required 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 of
obtaining 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 of
the Berne Convention.
5. Please clarify whether "database" under the Copyright and Neighbouring Rights Law
includes compilation of data in machine-readable 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 within
the 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, such  as CD-ROMs, mainly consisted of music and
accompanied by characters, still images, motion pictures or any other types of data than 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 strictly  interpreted so as to bring them within theIP/C/W/187
Page 9
permissible limitations on Article 9(2) of the Berne 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 circ le 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 ofreproduction does not infringe seriously the economic interests of the right holder.  Further, it is not
feasible 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 TRIPS Agreement.
B. 
PROTECTION 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. 
ENFORCEMENT
9. Please indicate the remedies which the judicial authorities order regarding intellectual
property rights, including injunctions, damages, expense s, destruction of disposal of infringing goods,
materials or implements for their production.  Pl ease 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 intellectual property rights to pay to the right holder.
For available remedies in the case of intellectual property infringement, please see Korea's
answer to Question 5 of the Checklist of Issues on Enforcement.2  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 for
calculating the amount of damages is described in the answer to Question 5 of the Checklist.  It may
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 the amount of damages.  For example, Article 94 ofthe 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 illegally
reproduced.
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
                                                     
2 Document IP/N/6/KOR/1.IP/C/W/187
Page 10
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 trademark 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 made 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 an
application by a right holder.
11. Please explain the kind and amounts of crimi nal 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 are consistent with
Article 61 of the TRIPS Agreement which requires the penalties to be sufficient to provide a deterrentconsistently 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.IP/C/W/187
Page 11
UNITED STATES
A. COPYRIGHT AND NEIGHBORING RIGHTS
1. Articles 23 through 33 of Korea's copyright law provide limitations and exceptions to the
exclusive rights of owners of rights in various kinds of copyrighted works.  Please explain, with
respect to each Article separately, the means by which the exercise of these limitations and exceptions
avoids conflicting with the normal exploitation of the work and prejudicing unreasonably the
legitimate interests of the copyright owner, particularly in light of the express restriction on the
limitation to exclusive rights 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 areprovided, 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.
2. Articles 47 through 49 provide for compulsory 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 dissatisfied with the compensation 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 istransparency 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 bedeposited 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 theapproval was issued.
(v) When the copyright holder is dissatisfied with the compensation, he may file an
administrative suit against the government.IP/C/W/187
Page 12
3. Article 52 of Korea's copyright law requires that transfers of an author’s economic rights,
including the right of publication (Articles 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 enjo yment 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 word, registration is required only for the sake ofprotecting 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 an
agreement between the transferor and the transferee, regardless of registration.
4. Article 65-2(1) of Korea's copyright law gives performers whose work is recorded in a
phonogram the right to authorize the lending of th e 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 these 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 copyrightlaw.  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 wi thout 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 Article 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 of
computer program copyright  becomes legally effective only through an agreement between thetransferor and the transferee, without the requirement of any formalities or procedures.IP/C/W/187
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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 in 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 whose author diedafter 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 97bis(2), which is included in the section regarding penal provisions, provides that
infringing goods may not be seized if the trademarks may be easily detached without affecting the
function of the goods.  Please explain whether the infringer is allowed to retain these goods or if theyare used for another purpose, 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. G
EOGRAPHICAL 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?  Please provide citations to
those laws and, if the texts of the laws have not been notified to the WTO, please notify them pursuantto 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-fisheries
Product Quality Management Act provide the legal means for protecting geographical indications asIP/C/W/187
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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.
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 ConcerningLiquor 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 Trademark 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 that
contain or consist of geographical indications is dealt with by the Korean Industrial Property Office.IP/C/W/187
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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 expeditedprocess 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. P
ATENTS
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 approvalprocedures 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 ofmanufacturing medicines in accordance with the Pharmaceutical Affairs Act or to medicines
manufactured by such acts.  Please explain in deta il what manufacturing authorization is provided 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.  Please explain why itIP/C/W/187
Page 16
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 com pulsory 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 licensee is not possible or no agreement is reached from such consultations.
What steps are taken to ensure that the applicant  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 continuously from the date the compulsory licence,
provided for under Article 107, is issued.  Please describe the provisions available that permit thepatentee 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 formally
submit their justifiable reasons for the lack of working.
19. Chapter IX of the Patent Law gives the Patent Court of Korea original jurisdiction over
infringement actions and appeals from decisions of the Korean Industrial Property Office.  Pleasedescribe in detail the make up of the court and indicate how judges are selected and appointed 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/C/W/187
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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
Trademark 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 our answers to Questions 23 and 47
posed by the United States, below).
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 with
Article 5(2) of the Court Organization Act. Currently, there are three collegiate divisions in the PatentCourt, each with a Chief Judge appointed to act as Presiding Judge for each collegiate.
F. U
NDISCLOSED INFORMATION
20. Please describe in detail the manner in which protection is provided for test data regarding
pharmaceutical and agricultural chemical products in order to obtain marketing approval in theterritory 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 Enforcement
Decree 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, anysubmitted 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 besubmitted to regulatory authorities to obtain marketing approval for pharmaceutical or agricultural
chemical products, with the ability to take actio n against government officials of such regulatory
authorities who disclose information in a manner inc onsistent 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 whosubmitted such data requests the protection of the data.  However, the Commissioner of the Korea
Food and Drug Administration can decide to disclose the data, where necessary to protect the public
interest.  This exception is envisaged to deal with an emergency situation which can only be addressed
through the disclosure of the data, which is in line 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 3 years or a
fine not exceeding 10 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.
22. Are other applicants for marketing approval for their own versions of a previously approved
pharmaceutical or agricultural chemical products pe rmitted to rely on data submitted by the earlier
applicant.  If so, when does such reliance become possible?IP/C/W/187
Page 18
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.
Only with the permission of the earlier applicant can other applicants rely on data submitted by the
earlier applicant.
G. ENFORCEMENT3
Civil and Administrative Procedures and Remedies
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 Korea's responses to the
Checklist4 states that the correct 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:
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 rights 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 co rrigendum to our responses to the Checklist in this
regard.
5
25. (A)  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?
                                                     
3 Follow-up questions to Korea's responses to the Checklist of Issues on Enforcement (document
IP/N/6/KOR/1).
4 Document IP/N/6/KOR/1/Corr.1.IP/C/W/187
Page 19
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 the
court, 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.
(B)  Please clarify the circumstances under which a person would be justified in refusing to
produce a document in an intellectual property infringing case.
The circumstances under which the holder of a document cannot refuse to produce requested
documents are described in our answer to Question 3 of the Checklist of Issues on Enforcement.
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.
26. Please elaborate on the procedures for protecting 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, th e 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.
27. Please identify each of the costs (i.e. attorney 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 theparties themselves in preparing documents, per diem and travel costs paid for the parties themselves
and 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.IP/C/W/187
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28. 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 his
rights, it is his responsibility to request the court to take such a measure.
29. 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.
30. Describe some of the other measures judges can order to prevent further infringing activity .
The list of measures provided in our answer to Question 5 of the Checklist is exhaustive.
There are no other measures that the court can order.   
31. 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.
32. 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.
33. 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 unlawful
acts.  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.
34. 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.
35. 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.IP/C/W/187
Page 21
Provisional Measures
36. 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).
Special Requirements Related to Border Measures
37. 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 Checklist,5 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 Trademark Act, Copyright Act as well as Computer
Program Protection Act, Unfair Competition Preven tion and Trade Secret Protection Act, Patent Act
and Design Act.
38. 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 a pply to infringing goods shipped in transit?
No, these provisions are not applicable to infringing goods in transit.
39. 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.
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.
40. 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;
                                                     
5 IP/N/6/KOR/1/Corr.1.IP/C/W/187
Page 22
- bank guarantee for payment; or
- stocks listed on the Korean Stock Exchange.
41. Does the importer also have the right to exam ine 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.
42. 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 ortrademark.  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.
43. When Customs officers suspend the release of goods acting on their own initiative, without a
request from the right holder, who makes the le gal 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 ofsuch goods are not satisfied with the customs official's decision, he may bring a lawsuit against the
Customs authorities.
44. 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.
45. How are goods disposed of which are confiscated pursuant to Article 97-2 of the Trademark
Right Act or Article 101 of the Copyright Act?
Such goods are normally destroyed by the prosecutor's office.
46. Can goods determined to be infringing be re-exp orted 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 97 bis of the Trademark Act and Article 101 of the
Copyright Act.
Criminal Procedures
47. Clarify which judges at the District Court have authority to hear appeals in intellectual
property cases originally tried by a single judge of the District Court.IP/C/W/187
Page 23
In such a case, the collegiate division (composed of three judges) of the District Court has
jurisdiction.
48. 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 work 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.
49. Please clarify whether fines and imprisonment are sanctions available in trademark cases .
According to Article 93 of the Trademark Act, any person who has infringed a trademark is
subject to imprisonment for up to 5 years or a fine not exceeding 50,000,000 won.  A penalty of both
imprisonment and a fine is not available.
50. Under what circumstances will a fine v. im prisonment 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.
51. Is 3 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 toprosecute within 3 months from the receipt of such a complaint or accusation.  Normally the
investigation ends within 3 months, but it can be extended when the gravity or complexity of the case
requires so.
52. Please provide statistical information related to civil copyright, trademark, geographical
indication, industrial design, patent, integrated-circuit layout design, and trade secret enforcement
for each of the years 1996 and 1997, including th e number of cases filed; injunctions issued;
infringing products seized;  infringing equipment se ized; 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.IP/C/W/187
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53. Please provide statistical information related to criminal enforcement in the area of copyright
piracy and trademark infringement for each of the years 1996 and 1997, including the number of
raids, prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines
were paid and whether the jail term was actually served or was suspended) and any other information
establishing that the criminal system operates ef fectively to deter copyright piracy and trademark
counterfeiting.
Please see the attached table (Annex).
54. 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 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
(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 5 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 3 years or a fine not exceeding 50 million won
(Article 46(1)(iii) of the Amended Computer Program Protection Act to be effective29 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 the
leadership of the Prosecutor's Office.  The Korean government will continue to make strenuous efforts
to improve the public's awareness of the importance of respecting intellectual property rights.IP/C/W/187
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ANNEX
1996 1997
Number of raids
Copyright piracy 7444 7476
Trademark infringement 4067 4110
Number of prosecutions
Copyright piracy 884 775
Trademark infringement 3231 3402
Number of convictions
Copyright piracy 728 557
Trademark infringement 2717 2926
Amount of fines
Copyright piracy:
More than 10,000,000 won 0 0
5,000,000 - 10,000,000 won 0 0
1,000,000 - 5,000,000 won 88 74
Less than 1,000,000 won 612 458
Trademark infringement:
More than 10,000,000 won 31 38
5,000,000 - 10,000,000 won 155 161
1,000,000 - 5,000,000 won 949 1171
Less than 1,000,000 won 714 879
Jail terms
Copyright piracy:
More than 2 years 1 1
1 - 2 years 1 0
6 months - 1 years 2 1
Less than 6 months 0 0
Trademark infringement
More than 2 years 323 285
1 - 2 years 187 151
6 months - 1 years 356 231
Less than 6 months 0 1
*  Data on the other requested items are not available.
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