6/13/2013

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 Korean Court Entertainment Law Cases (Court Summaries)
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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