SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Chulgun Lim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Works that are eligible for copyright protection under the CA include:
regarding a good’s contents rather than distin - guishing the good from those of others. 2.5 Notices and Symbols A trade mark owner is not obliged but can choose to indicate that a mark is registered. It is not mandatory to do so, but they can choose to use symbols (eg, ®) to denote registration, and there are no rules on how to use these symbols. If there is infringement of a mark that is indi - cated as having been registered, there is a pre - sumption of intent in the infringement. Therefore, this indication is useful in claiming damages for infringement. 2.6 Related Rights Trade marks can also be protected under the CA and the Design Protection Act. If a registered trade mark use conflicts with another’s patent, utility model or design rights for which an application was filed prior to the trade mark application filing date, or with anoth - er’s copyright occurring prior to such filing date, said trade mark cannot be used without the con - sent of the relevant rights holders. Trade mark rights can also be restricted. Even if a surname/name is registered as a trade mark (where it is uncommon, or where it is common but has acquired distinctiveness through use) (see 2.1 Types of Trade Marks ), others can use their real name if it is consistent with commer - cial practices, or an author can indicate their real name or pseudonym on the original and copies of their work. Such use or indication does not constitute trade mark infringement.
• literary works; • musical works; • dramatic works; • artistic works; • architectural works; • pictorial works; • audiovisual works; • graphic works; • software works; • derivative works; and • compilation works.
However, this list is not comprehensive, and copyright protection can be awarded to any work that meets the general requirements under the CA. Industrial designs are entitled to copyright pro - tection if they qualify as works of applied art – ie, when they are able to be reproduced in the same shape on articles and be separable from the articles wherein they are used. 3.2 Essential Elements of Copyright Protection A work must have creativity and express human thoughts and emotions in order to qualify for copyright protection. “Creativity” is recognised if the work is an original expression created by the author without copying expressions of oth - ers. The copyright protection requirements apply to all works of authorship.
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