SOUTH KOREA Law and Practice Contributed by: Hwansung Park, Eunwoo (Vera) Lee, Hankil D. Kang and Jung Heo, Lee & Ko
process involves soliciting the opposing party’s views on the admissibility of the submitted materials before making a ruling. Furthermore, the guidelines recom- mend that when documents, photos, audio, or videos suspected of being created by AI are submitted as evidence, the submitting party should be required to disclose whether AI was used in their creation. Platforms and Tool Providers Platforms and tool providers may face liability for joint torts if they facilitate infringing activities. According to court precedents, joint tort liability for aiding and abetting through omission can be established when: (i) the illegality of the copyright-infringing post is evi- dent; (ii) it is clearly apparent that the service provider either specifically recognised the circumstances of the posting or could have recognised the existence of the post; and (iii) the provider has the technical and eco- nomic capacity to manage and control such posts. 8. Intersections and Overlaps 8.1 Choice of Protection and Strategic Considerations As a general rule, multiple IP rights can overlap for the same subject matter, so it is uncommon to have to choose only one form of protection. The main excep- tion is the choice between patent protection and trade secret protection, since they differ on whether the technology is disclosed. The choice depends on factors such as whether the invention meets patentability requirements, the desired term of protection, the nature of the technol- ogy, and how easily infringement can be detected. Patents require novelty and inventive step, but once granted, they provide exclusive rights for up to 20 years from the filing date. Trade secrets require no reg- istration and can last indefinitely as long as secrecy is maintained, but they do not prevent others from inde- pendently developing the same or similar technology. Accordingly, where reverse engineering is easy, pat- ent protection is often preferable because it secures exclusivity for 20 years despite disclosure. Where reverse engineering is difficult, or infringement is hard
to detect, trade secret protection is usually the more strategic choice. 8.2 Cumulative and Overlapping Protection South Korea generally permits cumulative protection for the same subject matter under multiple IP regimes. Provided the requirements for each regime are met, overlapping protection is available. For instance, a product’s shape registered as a design may also qual- ify for copyright protection if it constitutes a creative work expressing human thoughts or emotions, while trade dress can be protected under both the Trade- mark Act and UCPA. Courts assess the validity of each claimed right independently: if all requirements are satisfied, the product or feature receives cumula- tive protection. However, even if a single infringing act violates multiple rights, double recovery for the same damage is prohibited. 8.3 Patents and Trade Secrets To be recognised as a trade secret, information must be non-public, have economic utility, and be main- tained as a secret. Non-publicity means the informa- tion is not known to persons engaged in the same industry or those likely to obtain economic benefits from it. Before a patent application is filed, the technology remains undisclosed and can thus be protected as a trade secret. Even during the application process, pro- tection is generally available if 18 months have not yet elapsed since the filing date, as the technology has not yet been made public. However, once 18 months have passed since the filing date, the patent applica- tion must be published in the Patent Gazette. From that point onwards, the technology no longer meets the non-publicity requirement and loses its status as a trade secret. Similarly, if the technical content is disclosed through patent publication, it fails to meet the non-publicity requirement and cannot be protected as a trade secret. Furthermore, when a patent expires or is invalidated, the technology generally enters the public domain and can no longer be protected as a trade secret.
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