SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
3.7 Copyright Enforcement and Remedies Infringement Copyright infringement is assessed based on sub- stantial similarity and access. Access may be effec- tively inferred from circumstantial evidence, and in particular, it may be presumed where there is such striking similarity as to exclude the possibility of inde- pendent creation. Remedies Civil liability arises for intentional or negligent copy- right infringement, and criminal liability may also apply if the infringement is intentional. Civil remedies include injunctions, destruction of infringing materials, and damages. Statutory damages and, in cases of wil- ful infringement, punitive damages may be awarded A preliminary injunction may be sought for urgent relief against copyright infringement, but it is not granted ex parte and instead involves adversarial proceedings similar to a lawsuit on the merits. 3.8 Infringement Tests and Substantiality In assessing substantial similarity, only protectable expressive elements should be compared. Where copying of a portion of the original work is alleged, the court should separately examine the originality of that portion, access, and substantial similarity, and then consider both the quantitative and qualitative significance of the copied expression within the work as a whole in determining infringement. For computer programs, because the range of ways to express a given function may be limited, this con- straint on expressive diversity should be taken into account when evaluating substantial similarity. 3.9 Collective Management and Licensing Collective copyright management (including trust management) operates under statutory frameworks but is not mandatory. Collective management organi- sations license rights and collect and distribute royal- ties under approved tariffs, which may raise competi- tion or fairness issues if excessive or discriminatory. Some uses are subject to statutory licences or remu- neration schemes. Royalty disputes may be resolved (quintuple damages). Preliminary Injunction
through mediation or arbitration, and can escalate to civil litigation or administrative challenges to approved tariff schemes. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter Governing Law of Industrial Designs Industrial designs are primarily governed by the Design Protection Act. Under this Act, a design is defined as the shape, configuration, colour, or any combina- tion thereof of an article, which creates an aesthetic impression through the sense of vision. Since the 2021 legislative amendment, the scope of protection has explicitly expanded to include partial designs, typefaces, and graphical user interface designs. Fur- thermore, multiple articles used together as a set may be registered as a “set of articles design”, provided that they maintain design unity as a whole. Trade Dress Trade dress refers to the composite of elements – such as appearance, decoration, colour, size, and shape – that collectively form the unique overall image of a product or service. In Korea, there is no single statute that independently governs trade dress as a distinct legal category. 4.2 Requirements for Protection Registered Designs The Design Protection Act provides legal rights for registered designs. To qualify for registration, a design must meet the requirements of industrial applicabil- ity, novelty, and non-obviousness at the time of filing. Industrial applicability means that the design must be capable of mass production using industrial manufac- turing techniques. Furthermore, designs are ineligible for registration if they are contrary to public order or morality, likely to cause confusion with the goods of another business, or consist solely of shapes essential
to the article’s function. Unregistered Designs
While unregistered designs are not protected under the Design Protection Act, they may still find protec- tion through other legal frameworks. Designs that can
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