SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
3.3 Authorship and Ownership Authorship and Joint Authorship
3.5 Term of Protection and Termination Economic rights in copyright last for the author’s life- time plus 70 years, counted from 1 January of the year following the author’s death. For a joint work, the term is measured from the death of the last surviving co-author, and in practice the exact date of death may become a key issue. Where the structure of rights differs from that of a natural person author – for example, in anonymous or pseudonymous works, works made for hire, or cer- tain works created in the course of employment – the term is generally 70 years from publication if the work is published, and 70 years from creation if it has not been made public within 50 years after its creation. For audio-visual works, the term is 70 years from pub- lication if published, and 70 years from production if not, reflecting the involvement of multiple contributors such as directors, screenwriters, and original authors. Moral rights expire upon the author’s death, but Korean law allows heirs and certain family members to enforce a significant degree of post-mortem “per- sonality protection”, including claims for cessation of infringement and restoration of reputation. Unlike the United States, Korean copyright law does not recog- nise a general termination right or automatic rever- sion of rights. Once economic rights are assigned or a long-term licence is granted, reclaiming them must be pursued through the terms of the contract or general civil law principles. 3.6 Limitations, Exceptions and Defences The Copyright Act sets out limitations on the scope of economic rights, allowing certain uses of works with- out the author’s permission in cases such as judicial proceedings, education, reporting on current events, and private use, provided the statutory conditions are satisfied. Under the fair use principle, uses that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the author’s legitimate inter- ests are permitted without the rights-holder’s consent. Courts adopt the four-factor test to comprehensively analyse the applicability of fair use.
Copyright is divided into moral rights and economic rights. To qualify as a joint author, three requirements must be met: (i) an intent to create the work jointly; (ii) a joint contribution to the creative form of expression itself; and (iii) the resulting work must be a single, uni- fied work in which the individual contributions cannot be used separately. The copyright in a joint work is, in principle, exercised by the unanimous consent of all authors, but an author may not unreasonably refuse to give that consent. Work for Hire A work created in the course of employment and pub- lished, or prepared for publication, under the name of a corporation or other entity is, in the absence of any different provision in a contract or in the company’s employment rules, deemed to have that corporation or other entity as its author. Publication is not required in the case of computer programs. 3.4 Scope of Rights and Moral Rights Economic Rights Economic rights in copyright are exclusive rights to exploit a work for economic purposes, including the rights of reproduction, public performance, public transmission (such as broadcasting and online trans- mission), public display, distribution, lease, and the creation of derivative works. Economic rights may be transferred in whole or in part, and general succes- sion, including inheritance, is also recognised. Moral Rights Moral rights protect the author’s personality inter- ests and include the right of disclosure, the right of attribution, and the right of integrity. They are per- sonal and non-transferable – even by contract, may be exercised by proxy only within limits that do not undermine their nature, and remain with the author. Although they expire at the author’s death, heirs or designated persons may, within a limited scope, seek cessation of infringement or restoration of reputation after death. Consequently, commercial agreements often include clauses where the author agrees not to exercise these rights, rather than transferring them, although the enforceability of broad waivers is subject to strict judicial scrutiny.
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