In November last year, the Supreme Court of Korea firstly issued a ruling addressing this issue.  The case dates back to 2006, when Fair Trade Commission(FTC) of South Korea ordered SK Telecom, the largest mobile carrier company and music download service provider, to lift up a DRM which had prevented the purchasers of MP3 mobile phone of SK Telecom from playing MP3 files downloaded from other online music store than SK Telecom’s online music store.  SK Telecom had appealed the FTC’s decision to the court.

At the heart of this lawsuit is whether SK Telecom’s use of DRM does constitute an abuse of its dominant market position under Korean Competition law.  In this regard, the Monopoly Regulation and Fair Trade Act(MRFTA) of Korea provides that any market dominant enterpriser shall not commit an act of either (i) unreasonably interfering with the business activities of other enterprisers or (ii) unreasonably doing considerable harm to the interests of consumers.  The FTC found SK Telecom’s using a DRM fell under this two anti-competitive acts.

The Supreme Court of Korea, however, held a different view from the FTC.  The Supreme Court pointed out SK Telecom’s use of DRM can be regarded as a justifiable measure for its copyright protection.  Therefore, the court ruled even though SK Telecom’s DRM interferes with other competitor’s online music download business, there is nothing unreasonable under the MRFTA.  Also the Supreme Court held that as there exists no legal obligation for music download service providers to standardize their DRMs, the inconveniences experienced by the consumers due to incompatible DRMs can not be interpreted as unreasonable or considerable harm to the interests of consumers.  In conclusion, the Supreme Court ruled that the court found no unfairness nor unreasonableness in SK Telecom’s DRM scheme, which means SK Telecom had no intent or objective of maintaining or reinforcing monopolistic status at the market, i.e., influencing a market artificially by restricting a free competition at the market, therefore FTC had erred in its decision that SK Telecom’s use of DRM violated the MRFTA provision on the abuse of dominant market position.

If you have any question related to this article or any other Korean legal issues, please send your inquiry email to Mr. Wonil Chung at askkorealaw@gmail.com.

© 2012 Wonil Chung, a Korean Licensed Lawyer at Chung & Partners.  All rights reserved.

The plaintiff Shin-Il Kim, a K-Pop composer, had filed a lawsuit against Jin-Young Park on July 2011, claiming Mr. Park’s song titled “Someday”, sung by IU, had infringed his song titled “To My Man” and he is entitled to a compensation of approximately 90,000USD.

The Court found that four bars from the chorus of defendant’s song is substantially similar to that of plaintiff’s song which constitutes a copyright infringement and ordered the defendant to pay approximately 20,000USD to the plaintiff as a remedy.

Under Korean copyright law, a claim for plagiarism and copyright infringement will lie when the defendant had an access to the copyrighted work of plaintiff and there exists a substantial similarity between the two works.  With regard to the first element, the access does not mean an actual access.  Rather, just a reasonable possibility of access is sufficient to meet that element.  In similar cases, Korean courts have presumed and acknowledged the accessibility in a situation where the plaintiff’s song was publicly available and widely disseminated.  The next element, a substantial similarity is quite difficult to establish.  Korean courts have set the basic rule that, when deciding the substantial similarity element in musical compositions, court should consider every components of the song with special emphasis on the melody part and this comparison shall be done in both quantitative and qualitative levels and reviewed by the perspective of normal listeners.

If you have any question about music plagiarism and copyright infringement issue under Korean copyright law, please send your inquiry email to Mr. Wonil Chung at askkorealaw@gmail.com.

© 2012 Mr. Wonil Chung, a Korean IP Lawyer. All rights reserved.

By the way, some news providers reported that this was the ruling from a Korean district court.  I, as a Korean lawyer, think that statement is half right and half wrong.  Basically it is true that the court issued a ruling which ordered the Apple Korea to pay $945 to the user.  But this was not the formal trial case, but a Request for a Payment Order case.  Payment order is much convenient & simplified legal procedures for claimant to get a judgment from the court compared to a formal lawsuit.  Once a request filed, the Korean court does not question the debtor (in this case, the Apple Korea) and issue a Payment Order within 2 or 4 weeks (in certain courts, within a few days). This payment order, a sort of ruling, asks the opposing party to choose whether to admit the claim as written on the request or to make an objection.  If no objection has been raised from the opposing party within 2 weeks, then the Payment Order has the same effect as a final judgement.  If the debtor objects to it, then the court regards the request for a Payment Order as a filing lawsuit and initiates a formal trial procedures(hearings and handing down a decision).  Also recently most of request for a payment order cases are being handled by the court clerks, not by Korean judges.

So in this case, there was no court hearing nor ruling in a practical sense.  That is why we should not interpret this as an authentic reasoning and conclusion from the Korean court.  It’s just Apple Korea did not file an objection to the request within the time.  That’s all.  Interestingly, I have no idea why Apple Korea did not raise an objection to the request.  Eventually they paid the amount accordingly to the applicant, because 2 weeks of time having elapsed without objection, the payment order had become a judgment.  The Apple Korea had to respect and follow the judgment.  But this act of Apple Korea also resulted in many Korean iPhone users’ rally to prepare for similar legal actions.  Does this mean Apple Korea or Apple Inc. really admitted their legal liability in location tracking issue?  Or did they just miss the 2 weeks of objection period?  I can not tell you about this point, and we should not, because payment order has no legally binding effect over other similar iPhone location tracking cases.  It means that in the prospective legal actions from other class of Korean iPhone Users, Apple Korea can easily deny their liability with no restriction regardless of this case and, if they do, the Korean court will look into the case from the beginning and will provide their interpretation of law and the ruling finally.

© 2011 Mr. Wonil Chung, a Korean IP Lawyer, Chung & Partners, a Korean Law Firm. All rights reserved.

Lets’ start with the situation in South Korea, where I’m practicing the law.  Actually there have been two cases related to this issue; Ental TV case and MyTV case.  Ental TV was an Internet-based TV recording service.  The registered users paid some amount of fees to the service provider and the service provider recorded TV broadcastings on its server at the request of the individual users with its automated software program, then converted it into the PC file format and sent the file to the user via Internet.  On April 30, 2009, the Seoul High Court ruled this Ental TV service infringed copyright of the TV Broadcasters.  The court found that it was the service provider, not an individual user, who recorded and copied the TV program, because the service provider owned and managed all the facilities used in recording the TV program.  Also the Court added that even though it was the individual user who copied the TV program, the very act of copying could not be defended as a fair use under Korean Copyright Act.  The service provider appealed, but on September 24, 2009, the Supreme Court of Korea refused to reconsider the case.

Once again on September 2010, in the case of MyTV, the Seoul Central District Court ruled the Internet TV streaming/recording service was illegal.  MyTV service had something different from the Ental TV.  It used a third-party hardware device called UTV HUBB, a Korean version of SlingBox.  Basically it hosted and managed 940 UTV HUBBs for the current and prospective registered users.  The users paid some amount of service fees and used one of UTV HUBBs.  Also MyTV provided a recording service to its users by connecting a personal video recorder to each of UTV HUBBs.  Thanks to this combination of UTV HUBB and PVR, the user could watch and record the TV from anywhere an Internet connection is available.  The broadcasting companies filed a lawsuit contending the MyTV service infringed their copyrights.  The Seoul Central District Court sided with the broadcasters.  The court found that, as every facilities including UTV HUBB and PVR was owned and managed by the service provider, it was the service provider, not the individual user, who broadcasted and recorded the TV program without consents from broadcasting companies, which constitutes a copyright infringement under Korean Copyright Act.  The court acknowledged that if the party who copied and transmitted the TV contents were the individual users, the service could be legal because the service provider’s role was just supporting and facilitating the user’s legitimate copying and broadcasting.  However, looking at the its own service structure, especially the ownership of the facilities, the court ruled that the users were not the party who made the copy and the transmission because they did nothing but subscribe to the service and everything, including the ownership and management of the facilities, was done by the service provider, which made the court declare the service was illegal.

In the center of these disputes lies a legal question: “Who makes the copy and transmission?”  If it is the individual user, not the service provider, then the service shall be legal in terms of copyright law as the service itself just does help the individual user’s fair use-watching and copying the broadcast for personal purpose only.  I think it is hard to find the right answer to this question considering there exist various types of service model, which means some services are legal and some are illegal based on its own service structures.  However, I think we should be cautious in judging the service illegal solely based on the issue of who owns and manages the facilities and devices.  As we know well, people have changed their style of  IT consumption from buying and owning an IT device to renting a device or using a service.  And even traditionally the Korean Supreme Court has regarded the party who owns and provides a service platform through which the 3rd parties can copy and transmit the copyrighted work via Internet connection NOT as the direct party who copies and transmits the copyrighted work but as subordinated to the individual user’s act of copying and transmitting.  I think we should not overlook this basic rule when deciding the legality of Internet TV streaming/recording service, RS-DVR service and SlingBox and any other similar time/place-shifting device hosting service.

Then, let’s move to Japan.  There have been numerous cases on Internet TV broadcasting and RS-DVR in Japan.  Among them, the most famous cases might be Meneki TV case and Roku-Raku case.  Both services are Internet TV streaming/recording service using an IT device such as Sony’s Location Free (Maneki TV) and Roku-Raku (Roku-Raku service).  Basically the Location Free and Roku-Raku have the same function as SlingBox.  The users buy the Location Free or Roku-Raku, the service provider hosts the device and transmit the TV contents to the individual user who owns the device via Internet connection.

To state the conclusions first, the Highest Court of Japan ruled both services were illegal on January 2011.  It was a big overturning of the lower courts’ decision that it was the individual users of the both services who copied and transmitted the TV contents so that the service provider had no liability in a sense that it just facilitated and contributed to the legal act (fair use) of individual users.  But the Highest Court found that as the service provider managed the facilities and made it available for the users to receive the  broadcasting signal at any time, the service provider was the party who copied and transmitted the broadcasting signal.

Now let’s turn to the U.S.  There is a famous leading case of RS-DVR, Cablevision case where the U.S. court of appear for the 2nd circuit found Cablevision’s remote-storage DVR service was not copyright infringement, because it was not the Cablevision but the individual subscriber who made the copy through RS-DVR.  The copyright holder appealed once again but the Supreme Court declined to hear the appeal.  As I understand, the basic concept of the U.S. court in Cablevision case was that whether a user bought a DVR and made a copy of TV contents at home or a user rent a server in cable TV provider and made a copy remotely was basically the same in a sense that the user made the copy.  The court found the RS-DVR was simply a digital version of the traditional VCR/DVR, which is totally legal.  I think this is very intuitive and straightforward reasoning.

Lastly I’d like to mention a case in Singapore, called RecordTV case.  RecordTV was an Internet-based TV recording service which allowed the users to request the recording of broadcaster’s programs through a rs-dvr device called iDVR.  The TV broadcasters alleged RecordTV infringed their copyrights, but the Court of Appeal of the Republic of Singapore court did not buy that argument this year.  The court ruled that RecordTV did not copy the TV programs; instead, it was the registered users requesting the recording of the TV programs using RecordTV’s iDVR who did so.  The court said that RecordTV’s iDVR not only served the same purpose as the traditional DVR/VCR, but was also a significant technological improvement over the latter with tangible benefits to the public, in a sense that RecordTV’s iDVR was more convenient and user-friendly than the traditional DVR/VCR.  Also the court found that as the broadcasters provided the TV program on a free-to-air basis, the broadcasters suffered no loss from RecordTV’s provision of additional and better time-shifting service to the users who were licensed to view the TV shows.

It is quite interesting that, even in cases which look similar, courts of various jurisdictions have handed out divergent opinions.  Should we understand this as it demonstrates how hard it is to strike a fair balance between the private rights of the copyright holder and the public’s general interest in using a more convenient and efficient new technology?  Some might say that current copyright law is unable to catch up with the improvement and innovation of the new technology which benefits the public.  But the aim of the copyright law is to promote creativity and innovation.  So what should we do if the law is not clear as to whether the new technology is infringing the copyright?  Which party should the court interpret the copyright law to favour; the copyright holder or the public’s general interest?  Different positions over this question can be said as one of the causes which made the cases in various courts result in different conclusions.

© 2011 Mr. Wonil Chung, a Korean IP/Entertainment Lawyer, Chung & Partners, a Korean Law Firm.  All rights reserved.

Almost the same lawsuit had been filed in South Korea. In Korea, a father uploaded to his blog operated by Naver, the largest internet portal site, a video capturing his 5 year-old daughter singing and dancing to a famous Korean female singer(Dambi Sohn)’s song, titled “Crazy”. But the video was taken down by the portal site operator upon a request from the copyright holder to the song alleging the video is a copyright infringement as it was used the song without permission. Then the father filed both a declaratory lawsuit that uploading the video did not constitute a copyright infringement and a monetary compensation lawsuit for mental damages which he suffered from the take down of the video he’d made.

On February 18, 2010, the Seoul Southern District Court sided with the father. The court ruled that uploading a video at issue did not constitute a copyright infringement because it fell within the scope of “the quotation from works made public” under Article 28 of the Copyright Act, which is a similar legal concept of fair use doctrine in the U.S. legal system.

The court said that “the video is the father’s own copyrighted work distinguishable from the popular song and made out of non-commercial purpose. It does not take advantage of the commercial value of the song”.

Also the court pointed out that “the duration of the scene where the toddler sings and dances to the song is only 15 second long and the quality of the recording sound in the video is very poor, which makes it hard to find that the video is using the song substantially”.

The court added that “if this kind of UCC is barred from being uploaded online, it results in a unnecessarily excessive restraint on the free expression”.

Finally the court declared that the video at issue did not constitute a copyright infringement and ordered the copyright holder to pay the father monetary compensation for mental damages suffered from the take down.

The interesting point of this ruling is that the court acknowledged internet user’s “fair use right of a copyrighted work”. The court held that copyright holder’s take down notice to the video at issue infringed this right and so ordered monetary compensation. By the way, Naver, a portal site, was exempted from this obligation to compensate, because, as an online service provider, its take down process was duly made pursuant to the Article 103 of the Copyright Act which is similar to the safe harbor clause in the U.S. copyright act.

Another interesting part of this ruling is that the court clearly found that the free expression under the constitution of South Korea must be considered fully and fairly in determining whether there exists a copyright infringement or not. Although the Korean Copyright Act has a fair-use-like clause, the clause is stated relatively narrowly so there has been a certain criticism that Korean court is not active in holding up a fair use defense. But this ruling held that the constitutional right of free expression has the equal value as a copyright stated in the Copyright Act which is a subordinate law to the constitution. That’s why I welcome this ruling and expect to see the balance between the free expression and copyright with more fair use defences accepted in the Korean court in the future.

© 2010 Mr. Wonil Chung, a Korean Lawyer/Chung & Partners, a Korean Law Firm. All rights reserved.

A) The Korean court permits international divorce lawsuit basically if the both foreign parties are living in Korea.  If the husband does not reside in Korea, as your question, the divorce lawsuit can be accepted only when she fails to locate him or he answers the lawsuit filed under Korean court.

Regarding the governing law, the divorce case shall be governed in the following order under Korean law:

1. the same law of nationality of both spouses
2. the same law of habitual residence of both spouses
3. the law of the place where is most closely connected with both spouses.

The Korean court shall decide if the divorce can be justified and effective based on the contents of relevant governing law.

Regarding justifiable causes for divorce under Korean law, you can find it here.

One thing should be noted is that she has to check her local lawyer or agency(relevant embassy) with further requirements which must be undertaken to make divorce judgment from Korean court effective in her own country.

The same goes to a new marriage in Korea.  Basically foreigners can marry to each other in Korea according to the Korean law.  This link could give you useful information as one of the parties in your question is U. S. citizen.

I hope this to be of assistance to you. If you have more question about foreign couple’s divorce or marriage in Korea, please visit our Legal Consultation center or send your inquiry email directly to Mr. Wonil Chung (askkorealaw@gmail.com).

© 2010 Mr. Wonil Chung, a Korean Lawyer/Chung & Partners, a Korean Law Firm. All rights reserved.

A) Basically being separated for many years is, by itself, not an justifiable cause for a judicial divorce under Korea divorce law.  The key issue will be why both of you have been separated.  If it is because of your husband’s violence and/or maltreatment, you’re surely entitled to request a divorce decree to a Korean Family court, even if you’re separated for only 1 day.  To the contrary, if you’ve maliciously deserted your spose and broke the marriage with your own faults, you can not get a divorce decree even though separated for a couple of years.

I hope this to be of assistance to you.  If you have more questions about Korean divorce law, please visit our Legal Consultation center or send your inquiry email to Mr. Wonil Chung (askkorealaw@gmail.com).

© 2010 Mr. Wonil Chung, a Korean Lawyer/Chung & Partners, a Korean Law Firm. All rights reserved.

A) If and to the extent that you are legally regarded as an employee under Korean labor law, you are entitled to to the severance payment.

The term employee under Korean labor law is someone who provides labor pursuant to his or her employer’s instructions or directions in exchange for wage compensation.  The most important factors for classifying someone as an employee are, among other things, (i) whether the person receives instructions or directions from an employer, so there exists a superior/subordinate relationship and (ii) whether the wages the person receives is of a nature that compensates for the labor he or she provided.  In many cases, foreign English teachers in Hagwon or School are being regarded as employees under Korean law.

It doesn’t matter whether your contract provides the clause or not.  As I explained in my other posts, Korean labor law (especially the Guarantee of Workers’ Retirement Benefits Act or Pension for Private Teachers and Staff Act) guarantees the minimum severance payment or pension plan for the employees.

I hope this to be of assistance to you. If you have more questions about Korean law related issues, please visit our Legal Consultation center or send your inquiry email to Mr. Wonil Chung (askkorealaw@gmail.com).

© 2010 Mr. Wonil Chung, a Korean Lawyer/Chung & Partners, a Korean Law Firm. All rights reserved.

A) I understand a certain portion of movie screen shot is printed on the back side of the DVD case.  In this case, the producer, not an actor, has the right to the screen shot.  So the producer does not have to get a consent from an actor to use the screen shot to promote the film such as to make a dvd cover.

If the producer, however, uses the screen shot which contains your image to promote not the film itself but other products such as a car, dvd-player and so on without your consent, it infringes your right of publicity.  But I’m afraid that this is not that case.

I hope this to be of assistance to you.  If you have more questions please email me back.  Our law office is also specialized in an entertainment law. If you have more questions about Korean law related issues, please visit our Legal Consultation center or send your inquiry email to Mr. Wonil Chung(askkorealaw@gmail.com).

© 2010 Mr. Wonil Chung, a Korean Lawyer/Chung & Partners, a Korean Law Firm.  All rights reserved.

A) Yes, there is a 40-work-hours clause in Korean labor law.

The Labor Standard Act of Korea provides that “Work hours shall not exceed 40 hours a week, excluding hours of recess”.

However, in case of workers who are not less than eighteen years of age and women workers who are not in pregnancy, a employer and a workers’ representative can legally agree to extend work hours in excess of 40 hours a week to the extent that average work hours per week during a certain unit period of not more than 3 months do not exceed the 40 work hours, provided that work hours in any particular week shall not exceed 52 hours respectively.

I hope this to be of assistance to you and your friend.  If you have more questions about Korean law related issues, please visit our Legal Consultation center or send your inquiry email to Mr. Wonil Chung(askkorealaw@gmail.com).

© 2010 Mr. Wonil Chung, a Korean Lawyer/Chung & Partners, a Korean Law Firm.  All rights reserved.