International report - Recent amendments to the Copyright Act 05 Oct 11
Kim & Chang - South Korea
The amended Copyright Act was promulgated on 30th June 2011 under Decree 10807 and became effective on 1st July 2011, the same day as the free trade agreement (FTA) between South Korea and the European Union entered into force. The act was amended to reflect the copyright-related provisions of the FTA. The major amendments to the act are detailed below.
Extended copyright protection term
Under Articles 39 to 42 of the amended act, the term of copyright protection is extended from 50 years to 70 years. Accordingly, an individual author can now enjoy copyright protection for 70 years after his or her death (an individual author of a cinematographic work or a computer program can enjoy 70 years' protection from the date of its publication). In addition, the copyright protection term for works made for hire has been extended from 50 years to 70 years after the date of its publication. However, under Addendum 1 of the amended act, the amended provisions on the copyright protection term will take effect on 1st July 2013, two years after the effective date of the FTA.
Under Addendum 2 of the amended act, the act does not apply to a copyright work if the work - in whole or in part - is no longer protected or the protection term has already expired under the pre-amended Copyright Act. In addition, under Article 3(4) of the amended act, even though a copyrighted work is protected under the amended act, if its protection term has expired in the country of origin, the extended term of copyright protection under the amended act will not be recognised in Korea.
Public performance right of broadcasters
Under Article 85(2) of the amended act, broadcasters are granted public performance rights if admission fees are collected from the audience for performance of a broadcast in a publicly accessible place. As broadcasters invest a substantial amount of funds in broadcasting, the amended act intends to allow broadcasters to enforce their proprietary rights against those who gain commercial profit from the broadcast programme.
Liability of online service providers
Article 102 of the amended act explicitly and specifically sets forth the requirements for exemption of liability for online service providers (OSPs) in four categories - conduit, caching, hosting and information searches. The amendment aims to resolve the potential dispute over the liability of OSPs where their conduct is deemed to be unrelated to the infringement committed through the Internet by direct infringers and their liabilities. At the same time, the amended act makes it easier to impose liability on OSPs that fail to meet the above requirements for such exemption.
Technical protection measures
Article 2(28) of the amended act explicitly encompasses and thus clarifies legal protection for previously disputed technical protection measures for access control. The amended definition of "technical protection measures" is as follows:
"technical measures taken in relation to the enforcement of copyright by the copyright holder or a person who obtained consent form the copyright holder in order to effectively prevent or restrict access to the copyrighted works protected under the Act."
In addition, Article 104(2) of the amended act enumerates the grounds on which exceptions to the prohibition on the circumvention of technical protection measures can be based, such as when a cryptographer legitimately acquires a copy of a copyrighted work and circumvents its technical protection measure within the scope necessary to conduct research on the defect or weakness of the applied cryptograph.
The FTA between South Korea and the United States has yet to be ratified and further amendments of the act are therefore likely to follow in order to implement the Korea-US FTA. These additional amendments are expected to include the adoption of a statutory damages scheme.
This article was first published by the International Law Office (www.internationallawoffice.com).
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