SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
Freedom of Speech/Right to Information The following are exceptions to copyright infringe - ment in relation to freedom of speech and the right to information: • political speeches and public statements in courts, parliaments or local councils may be used in any manner; • works that are incidentally seen or heard in the course of news reporting may be reproduced, dis - tributed, performed or communicated to the public within a reasonable scope; • articles and editorials published in newspapers or other news media may be reproduced, distributed or broadcast by other media organisations, unless such use is explicitly prohibited; and • published works may be cited for certain purposes – including criticism, education or research – within a reasonable range and consistent with fair prac - tice. 9.3 Exhaustion Trade Mark The concept of the exhaustion of registered trade mark rights is established in case law, with the fol - lowing requirements: • a legitimate registered trade mark owner should transfer goods bearing the registered trade mark in Korea; and • the transferee should not process or repair the goods in a way that impairs the identity of the original goods. Copyright The CA recognises the exhaustion doctrine, stating that the copyright owner’s right to distribute the work is exhausted once the originals or copies of the work are first provided for sale with the owner’s authorisa - tion. However, there is no established precedent for the exhaustion of digital reproductions.
infringing goods and the removal of facilities used for infringement. Similarly, a copyright owner can request the destruction of infringing goods and other actions when filing a claim to halt or prevent infringement. The court typically issues orders to stop infringement and destroy infringing goods held by the infringer if infringement is proven and the defences and excep - tions are not upheld. For registered trade mark/copyright infringement, the rights holder can apply for a preliminary injunction, which may be granted if it is necessary to prevent significant harm that is likely to occur while waiting for the final judgment or to avert imminent danger. The court determines whether a preliminary injunction is necessary, weighing factors such as the interests and potential losses of both parties and the likely outcome of a lawsuit. When granting a preliminary injunction, the court can require a security provision in the form of a cash deposit or deposit guarantee insurance cer - tificate, the amount of which depends on the subject Generally, damages from a tort are the difference between the injured party’s total assets absent the infringement and such assets after the infringement. However, proving this difference is challenging in cas - es of trade mark or copyright infringement. Conse - quently, the TMA, UCPA and CA all include provisions for estimating such damages. The damages amount can be presumed as follows: • the volume of the infringer’s goods transferred or sold multiplied by the claimant’s profit per unit of its own goods; • the infringer’s profits gained by the infringement; or • a reasonable royalty (ie, the objective amount that of the preliminary injunction. 10.2 Monetary Remedies would have been paid had the infringer entered into a licensing agreement with the claimant). If the court finds that proving the exact amount of damages from the infringement is challenging due to the nature of the case, it can determine a reasonable amount based on the entirety of the proceedings and the outcome of evidence examination.
10. Remedies 10.1 Injunctive Remedies
A trade mark owner can request actions beyond pro - hibiting the infringement, including the destruction of
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