Tuesday, June 18, 2013

Definition of Defamation in Korea

Supreme Court Decision 97Da19038 delivered on February 27, 1998
【Damages】

Translation of Official Court Summary 

a. When a media, such as broadcast etc, defames one by presenting fact, the action has no illegality when the alleged fact is related to a public matter, the presention is intended solely for the public interest, and the alleged fact is proved to be true. In addition, even when the alleged fact is not proved to be true, but the presenter believes that the alleged fact is true and has substantial reasons to believe so, the action shall be deemed to have no criminal or reckless intent.

b. As regard to a defamatory act of the media, to decide whether the presenter has substantial reasons to believe the alleged fact is true or not, the content of the presented fact, certainty of evidence or resources that made the fact be believable, method of expression and other factors shall be all considered. Especially, if the alleged fact is a historical one, the research on the historical fact and freedom of expression shall take priority over the honor of the deceased and his/her family. And in making the decision, it should also be considered that it is difficult to check the truth of the alleged fact, since the objective source to check the truth is limited.


Translations of Korean Court Entertainment Law Cases (Court Summaries)
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Monday, June 17, 2013

Selling & Marketing in Korea Through Distributors and Other Indirect Sales Channels

Indirect selling can be one of the least expensive and lowest risk strategies. Among American firms selling into Korea are offshore companies that use local distributors.

Often, foreign companies organically grow their operations throughout Asia by contracting local companies before setting up a representative office and hiring their own local staff. This approach offers obvious advantages, but also contains many hidden pitfalls. Before entering into any kind of international distribution agreement with a Korean distributor, for example, it may be wise to ask oneself just why one is entering the Korean market rather than using the same resources to expand in existing markets.

If the rationale is purely opportunistic, chances are your firm may not truly exceed beyond getting one or a few customers who are well known to your distributor. While the go or no-go decision criteria for selling through offshore channels may be less demanding than calculating the return on investment through a direct presence, several factors should still be carefully considered. Enthusiasm for Foreign Products Koreans are enthusiastically curious about foreign goods and services.

As may be expected, the more enhancing and least disruptive goods and services will fare best. Other products may be intrinsically disruptive, if only for the overall good of the user, but thereby require much more selling and after-sales support. In this case, Koreans naturally will consider if there are cheaper, local alternatives with sufficient Korean-speaking after-sales support. While price is often an overbearing consideration, there are foreign products that compete in Korea on their unique values--even if they cost more than local competing products or solutions. In any event, it is critical to concretely identify your competitive advantage from the Korean perspective rather than that of your marketing department. Finding a distributor in Korea is easy. But, finding an effective one can be difficult.

The good news is that many individuals and firms can assist you in this task. Since this is a compact business society, one can say that almost everyone knows everyone else, one or two people removed. It is not wise, therefore, to select an English-speaking distributor or market entry specialist primarily because he “knows all the key players.” Most folks who have 10 years or more experience and have been reasonably successful can qualify by that criterion alone.

 What actually makes a good distributor may vary from industry to industry. However, a safe bet is to find one that is already selling profitably to market leaders. The ideal distributor should be well known and respected, but not so large as to consider your product as simply another arrow in its sales quiver. I know of any number of war stories—those of foreign firms coming to Korea and being attracted to some of the biggest names in their field. The stories vary but share a common theme. At the beginning, everything looks extremely positive.

The distributor’s staff are very bright, many speak decent or even very good English, and they are already working with or at least very familiar with your target companies. Then one day, the foreign firm receives communication introducing them to a new product manager or even a new product team within their distributor. What the foreign firm did not realize or take into adequate account was that very large distributors often rotate their staff every couple of years—and sometimes even more frequently.

Consequently, prior investment in training the distributor’s sales and after-sales staff can suddenly disappear within one of these frequent organizational reshuffles. On the other hand, it can be equally disastrous to collaborate with too small of a distributor, financially over-dependent on the success of your product. While such a distributor may offer the fullest measure of dedication to your product line, they may not have the financial or human resource capacity to expand once they start selling. More than once I have seen customers delay payments to the distributor for large capital asset sales until the customer is fully satisfied with the purchase.

This has often resulted in enterprise-threatening cash flow problems for these small firms. While there is no magic criteria that applies to all industries, one should evaluate multiple candidates and consider finding a mid-sized firm that has a strong reputation, an appropriate customer base, and one that is already profitably selling complementary, or at least not competing, products. The goal is to find a distributor that has enough skin and flexibility to survive both types of challenges.

The Deal It is not uncommon for a Korean distributor to go to his foreign partner and ask for so-called “one-time, special” pricing discounts on the first deal and to demand that the foreigner to send his support staff for the duration of the project given the lack of product understanding of the local after-sales staff.

This can easily happen even when there has been a clear, prior agreement as to the level of support to be provided by the foreign partner. What often happens is that the foreign firm makes a pricing concession for a market entry deal while not realizing that they may have set the benchmark by which all other deals will be closed in this tight-knit business community. When it comes to sending support personnel to Korea, the foreign partner draws the line and agrees only to send support staff for limited amounts of time during the course of the project. Usually the ensuing confusion from the lack of on-site spot support, regardless of the amount of off-shore phone support, leads both parties to agree in retrospect that it would have been cheaper to have kept a foreign partner’s support staff on-site the entire time.

How Korean firms look at written agreements can be at odds with their foreign partners. Korean firms look at such agreements as generally acceptable guidelines on how to approach an uncertain future. In the Korean businessman’s mind, one must be flexible to deal with discovered realities—even if such accommodation may run against the core of the foreigner’s agreement. If the foreign firm is unfamiliar with doing business in Korea, it becomes exasperatingly difficult to know when to concede in deference to local market requirements and when to say “no.” Usually the vendor-distributor relationship is still green.

The matter of trust becomes a serious issue with both sides where the foreigners start wondering if they are being “taken for a ride,” while their Korean counterparts start fuming that the foreigners are reneging on prior assurances of being competent and worthy partners Normally one can hide from the customers the temporary disruption or suffering of vendor-distributor relations. However, if one does not quickly and sufficiently address the matter, word will leak out into the market. And in Korea, where personal relationships insist that friends share almost everything, businesses may find that there are no secrets.

War Stories In one war story involving partnerships with local distributors, the distributor purposely price gouged their customers while it possessed a monopoly in the market for a high-tech system. Not stopping there, the distributor disabled some of the product’s functionality in order to sell multiples of the product, when a single, fully functional product could have addressed each customer’s multiple needs.

The distributor in the meantime reverse-engineered the core product with the intent of introducing a competing, “Made in Korea” product that would be not only cheaper but more fully functional. In another, the local software distributor provided excessive customized services as a way to sell its services rather than working closely with foreign vendor’s development staff.

After several years, the totally “Koreanized” solution was so overwhelmingly localized that the core product had become barely recognizable. Consequently, while the rest of the foreign vendor’s overseas markets were moving along onto next-generation products, Korean customers lagged behind and often dropped use of the foreign products since there was little incentive to upgrade. In both worst-case scenarios, the common denominator was that there was no one on the ground watching out for the foreign vendors’ best interests.

Sending rescue operatives late into the game can be an exercise in futility since local past practices can position the foreign product as being too expensive, thereby creating major marketing headaches for expanding the customer base. Furthermore, customers may already be accustomed to using the products in inappropriate or inefficient ways. Taking corrective measures may cause a great deal of embarrassment within customer organizations. Therefore, much consideration must be given toward building successful partnerships with distributors. Possible Roles The single, biggest cause of failure in the partnerships between foreign companies and distributors must be conflicting expectations of the each other. Rarely does an in-depth conversation take place. While one would assume that this would be resolved in the course of negotiating a sales distribution agreement, too often does this turn out not to be the case. Take, for example, the role of the distributor.

The two most common types of roles played are the midwife and the full representative.
By midwife, it is meant a distributor who basically knows the marketplace and introduces your sales and support staff to the customers during and following the sales cycle. Commonly found in the case of cutting-edge products and technologies and often expensive, this model allows the foreign company to get close to the customer base and have greater control of how the customer base buys and implements your product. This knowledge can in the end be critical as it may be very difficult--if not impossible--to move the customer base along to the next generation of products and services in the case the distributor improperly sells or implements the product.

A full representative, on the other hand, is a distributor who is fully trained and able to conduct the entire sales cycle and is also capable of providing primary or level-one technical or after-sales support to local customers. It is often applicable to a product or service that may be unique in terms of features and functions, but is already familiar to the market and is composed of qualities or technologies well understood by the after-sales staff. The obvious drawback with the full representative is that it essentially “owns” its share of the market and will often keep the foreign firm away from the customer base out of fear that the foreign partner may go around it in the future. Also, while end-user pricing methods undisclosed to the foreign firm may bring short-term windfalls to the distributor, it may deny the foreign firm of future sales as the local market seeks less expensive alternatives.

Getting Up to Speed In any event, the end goal for foreign firms is to have their distributors be as competent as possible. Too often foreign firms believe that by training the sales and after-sales staff in their product or service they can soon be able to rely on the distributor. Yet, when the first strategic, major sales opportunity takes place, the distributor and the foreign firm suddenly find themselves at odds, no matter how clearly the distribution agreement may have been written. Even if there is full review between the foreign firm and distributor, both sides often underestimate the difficulty in getting the local staff properly trained.

Local employees tend to be a bit overconfident in their knowledge attainment and foreign firms tend to be a bit too eager to accept their Korean partners’ assurances. The biggest cause of disappointment may be the communication barrier between foreign support staff and local line staff. While local employees can read English fairly or extremely well, they usually find themselves at a total loss when it comes to phone conferences. Furthermore, they may seem to understand during product training, when in fact they may be getting less than half of the delivered content. All of which has a nasty way of being revealed when the pressure is on to meet what a foreign firm may consider as an unrealistic or overly aggressive deadline established by (or sales promises given to) the prospective customer.

Keys to Success Given the above, one may wonder how one can be successful in Korea without a direct presence. One way is to limit your expectations of success and allow someone whom you may have met at a trade show or whomever to sell the least difficult product to a small part of the market. The danger with this strategy, of course, is that you may end up with expensive support of one-off sales in Korea while missing a potentially larger and more profitable market. A more effective alternative is to find an agent who has a fair appreciation for the ways of doing business in Korea and abroad and who can actively keep you in touch with your distributor and the marketplace. Working with the distributor at least on a weekly basis, the agent stays up-to-date on the distributor’s staff, prospects and customers in order to advise both foreign firm and local partner on small, conflicting matters before they fester into major issues. A good example of this involves the timeliness of communication.

In a culture that stresses, “Just do it now!” Koreans are often exasperated by the slow response they get from their foreign partners. Time differences in global partnerships can be equally irritating between partners, but often it is difficult for Koreans to appreciate that the foreign partner is trying to systematically service concurrent, multiple market needs and that their demands are not cued to the front upon demand. At the same time, foreign partners are often slow to understand and appreciate the time and emotional demands that customers and prospects routinely place on local distributors.

With concise and timely communication of issues, the agent allows for the foreign firm to make effective decisions, and in the meantime, assists the local distributor to understand the benefits behind certain management practices (frequent sales forecasts, adherence to business plans, etc.). Upgrading performance through experience-based consulting—including the evaluation or suggestion of alternative sales strategies, uncovering hidden conflicting agendas, and provision of results-oriented sales training—is also a possibility. Foreign firms and their distributors tend to spend a great deal of resources on product training and assume the sales staff already possess effective skills from their years of experience.

Also, while “relationship selling” is essential to sales strategy in both Korea (friendship weighted) and the United States (“professionalism” weighted), engaging in just one form of relationship selling may very possibly result in market areas inadequately explored. In the end, the decision to establish indirect sales in Korea must be made in conjunction with the question: “Who is going to keep an eye out on the store?” After all, your local partner will be selling your product, advancing your brand, and largely determining the success of your company in the world’s 11th or 12th largest economy.

by Tom Coyner.  Senior Advisor for IPG Legal
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info@ipglegal.com

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Censorship Prohibited in Korea: Entertainment Law Cases in Korea

Constitutional Court Decision 93Hunga13 delivered on October 4, 1996
【Request for Adjudication on Constitutionality of Motion Pictures Act Article 12, etc.】

Translation of Official Court Summary 

a. Censorship noted in Constitution Article 21 Section 2 is in effect by authoritative power and is a measure of prevention, a system that prevents the iteration of unapproved ideas or opinions in order to control, by evaluating the content of ideas or expressions. Thus, censorship generally entails four requirements: obligation to submit for approval, evaluation procedure in advance by an authoritative power, prohibition of unapproved expression, and a compulsory measure to accomplish the evaluation.

b.  Although the Constitution Article 37 Section 2 states the freedom and right of citizens may be restricted by Act for national security, the maintenance of law and order or for public welfare, the Constitution Article 21 Section 1 states censorship, to restrict the freedom of speech and the press, shall not be allowed even by Act.

The case establishes that censorship is prohibited in Korea.

Translations of Korean Court Entertainment Law Cases (Court Summaries)

Friday, June 14, 2013

Korea Legal News for the Week of June 9, 2013

This Week's Korean Legal News Reported by Media

Most Recent Posts from The Korean Law Blog
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Definition of Copyright in Korea: Ideas vs. Expressions

Supreme Court Decision 93Da3073 delivered on June 8, 1993【Damages】

Translation of Official Court Summary 

a. The work protected by the Copyright Act shall be a creative work that expresses human thoughts and emotions, which is obtained by a human's intellectual effort related to study and art, and thus what the Copyright Act protects is a creative expression form in which thoughts and emotions are expressed externally in detail by language, letter, sound, color, etc. The content of expression itself, such as thoughts and emotions of an idea or a theory, is basically not a work and shall not be protected as an author's moral right or property right according to the Copyright Act even if it has originality and novelty, however the storyline of a novel is protected by the Act. Particularly, in case of a work included in the realm of scholarship, since academic content shall be common to anyone and shall be allowed for anyone to use without restriction, the copyright's object for protection is not academic content, but creative expression.

b.  Copyright's object of protection is not an idea, but an expression that is limited to the personal part, when the author's originality is shown, and therefore while deciding if there is practical similarity between the two works to tell whether or not the copyright is infringed, the object compared shall be limited to expression and the original part.

Translations of Entertainment Law Cases of Korean Courts (Court Summaries)
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Thursday, June 13, 2013

Definition of "Author" under Korean Copyright Act: Entertainment Law Cases in Korea

Over the next couple of weeks we will be publishing translations of the summaries of the 20 Leading Cases in Korean Entertainment Law.  The cases should be useful for entertainment law practitioners and should, also, be useful for those practicing copyright, trademark and general IP law.

Supreme Court Decision 92Da31309 delivered on December 24, 1992 【Objection to Provisional Injunction】

Translation of Official Court Summary 

a. Under the Copyright Act, the term "author" means a person who has created a work, and a copyright shall commence from the time of its creation and shall not require the fulfillment of any procedures or formalities for creation of the copyright and author’s moral rights shall belong exclusively to the author which is inalienable. The provisions prescribed above are mandatory provisions which the parties cannot change by agreement. 

In case of a work that is essentially commercial, and which has strong necessity to be modified by the purchaser's intention, the value of property may be important while the value of the moral rights are considered less important. However, these works also are an expression of an author’s moral right and it is obvious that the author will have a strong attachment to the work like other fine art. Moreover, since the purpose of the articles is to qualify the author’s moral rights to the person who virtually created the work, even for works of applied art which are essentially commercial, and even with the agreement between the parties, a person who has not virtually created the work shall not be defined as an author. 

b. If the designer of the work had refused the performance of the duty to modify the design, which is deemed as an implied consent that the designer would not object to the purchaser's modification of the design, even the purchaser has partly modified the design and is using it for the purposes of the company, it shall not be an infringement of the right of integrity under the Copyright Act.




The work at issue was the Racoon Dog mascot above.  Don't worry - no copyright issues in us placing this on the blog.  :)  Will be explained in an upcoming translation. 

Translations of Entertainment Law Cases of Korean Courts (Court Summaries) __________
Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.


info@ipglegal.com

Korea Enforcing Laws: Seoul Police Arrests Union Leader

The head of the Ssangyong Motors union has been arrested and detained by the Seoul Metropolitan Police Department for setting up tents for union protestors in the front of a heavily touristed downtime palace.  The arrest was obtained via a court detention warrant.

The Seoul City, during past demonstrations, has been crippled by demonstrators hellbent on disrupting the lives of fellow citizens.  Protests have even lead to the burning of police buses and the destruction of other city property. 

The union leader has violated a law on setting up illegal facilities multiple times and was arrested while on probation.  It seems the purpose of these protests has little to do with the freedom of expression and more to do with attempting to occupy a space in order to disrupt the lives of residents and tourists. 
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal.  He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

Tuesday, June 11, 2013

Legal/Compliance Checklist for your Korean Company: Top 7 Things to Do Before you Do Business in Korea

This checklist was made in response to a media inquiry and is not meant to be exhaustive.
  
1.  Do you Have a Registered Company/Business? Operating in Korea is not as simple as just leasing an office.  All businesses whether in the form of a corporation or sole proprietorship in Korea are required to register as business with the tax office and local government offices.  For some businesses the approval of a government agency will be required.  Other articles on Korean corporate forms may be found at:

2.  Do you Have Employment Agreements, Employment Rules, License Agreements, Joint Venture Agreements, OEM agreements, Shareholder Agreements, Lease Agreements Tailored for your Korean Business?
No your U.S. agreements are not good enough.  Other articles on the need for Korean-tailored agreements that may be of interest may be found at:
3.  Are you in Compliance with Foreign Corrupt Practices Act?  The U.S. Foreign Corrupt Practices Act (FCPA) and the British, Canadian, French, German equivalent allows the government to severely punish those for even actions of a Korean partner.  A compliance system must be put in place.  If you do not have a compliance system tailored to your Korean operation - you may be heading down a road that can lead you into the hands of not, only, the Korean prosecution, but the prosecution of your foreign government.  A few more posts that may be of interest:
4.  Have you Protected your Trademarks, Patents, Copyrights and other Intellectual Property Rights?  Registration of your Intellectual Property rights (IP) "internationally" is not good enough for Korea.  You must register your IP in Korea.  Please read the following posts:
5.  Due Diligence?  I wrote so many times about Due Diligence it is painful to type those two D words.
6.  Did you Conduct a Compliance Audit?  You may be in violation of employment, tax, environmental, antitrust/monopoly, currency control, transfer pricing, occupational health and other laws and regulations.
7.  Did you Conduct a Financial Audit by a True Independent Auditor?  Speaks for itself.

Please - this is not to be taken as an exhaustive checklist.  Please scroll the blog for more issues that may arise in your operations in Korea. 

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Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.

info@ipglegal.com