SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
Information has independent economic value if the information owner can gain a competitive advantage over competitors by using the infor - mation, or if significant cost or effort is required to obtain or independently develop the informa - tion. Information has been managed as a secret if it is objectively recognised that the secrecy of the information is maintained or managed, such as by: • indicating or notifying the information so that it could be recognised as a secret; • restricting who can access it or the method of access; or • imposing a confidentiality obligation on those With respect to the “secrecy” requirement, in 2019 the UCPA amended the “maintain secrecy by reasonable efforts” clause to “manage the information as secret” , to lower the bar for the secrecy requirement for trade secrets. Therefore, under the amended UCPA, a trade secret owner is not required to show that it took reasonable measures to protect its trade secrets, and the “secrecy” requirement would still be met if infor - mation was managed as a secret even without reasonable efforts. Although under the amended UCPA, the term “reasonable efforts” was removed from the “secrecy” requirement and the term “maintain” was changed to “manage” , the current UCPA still requires the “secrecy” of information. Since the trade secret owner needs to exert efforts in whatever form to satisfy this requirement, the prevailing view in academia is that even under the current UCPA, a certain level of effort is required to meet the “secrecy” requirement who access such information. 1.5 Reasonable Measures
(Sang Jo Jeong, Annotation to Unfair Competi - tion Prevention Act, Pakyoungsa 2020 at 315– 316). 1.6 Disclosure to Employees The disclosure of a trade secret to employees could undermine the possibility of protection for the trade secret, since it could increase the risk of making the information known to the public and/or undermining the “secrecy” requirement. To maintain trade secret protection, it would be recommendable for the employer to: • advise employees that the information is confidential and proprietary and constitutes a trade secret; • regularly hold education for employees; • obtain confidentiality or non-disclosure agree - ments from the employees; and • appropriately limit the scope of employees and officers with access to information based on the relevance of their job duties. 1.7 Independent Discovery Trade secrecy of the information cannot be denied merely because independent discovery or reverse engineering is possible. However, independent discovery or reverse engineering of a publicly available product does not consti - tute trade secret misappropriation. The entity engaged in independent discovery or reverse engineering actually bears the burden of pre - senting concrete proof that it obtained the rel - evant information by independent discovery or reverse engineering as a defence in the trade secret misappropriation lawsuit. 1.8 Computer Software and Technology In Korea, there are no protections for trade secrets that are unique to computer software or technology.
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