Copyright law

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addenda

CHAPTER 9.REMEDIES FOR INFRINGEMENT OF RIGHTS

Article 123 (Right of Demanding Suspension, etc. of Infringement)

(1) Any person who holds the copyright or other rights protected under this Act (excluding the rights to be compensated under Articles 25, 31, 75, 76, 76-2, 82, 83 and 83-2; hereafter the same shall apply in this Article) may demand of a person infringing his/her rights to suspend such act or demand a person likely to infringe on his/her rights to take preventive measures or to provide a security for compensation for damages.
<Amended by Act No. 9529, Mar 25, 2009>
(2) If a person who holds the copyright or other rights protected under this Act makes a demand under paragraph (1), he/she may demand destruction of the objects made by the act of infringement or other necessary measures.
(3) In the cases of paragraphs (1) and (2), or in the case where a criminal indictment under this Act has been filed, on request of a plaintiff or accuser, the court may, with or without security, issue an order to temporarily suspend the act of infringement, or seize the objects made by the act of infringement, or to take other necessary measures.
(4) With respect to paragraph (3), where a final judicial decision was made that no infringement of copyright and other rights protected under this Act has been made, the applicant shall pay compensation for the damages caused by his/her request.

Article 124 (Act Construed as Infringement)

(1) Any act falling under any of the following subparagraphs shall be considered to be infringement of copyright or other rights protected under this Act:
<Amended by Act No. 9625, Apr. 22, 2009>

1. The importation into the Republic of Korea, for the purpose of distribution therein of goods made by an act which would infringe on copyright or other rights protected under this Act, if they were made within the Republic of Korea at the time of such importation;
2. The possession, for the purpose of distribution, of goods produced by an act that constitutes an infringement on copyright or other rights protected under this Act (including those imported as referred to in subparagraph 1) with the knowledge of such infringement;
3. Exploitation in business of a copy (including imported goods pursuant to subparagraph 1) of a program made in infringement of copyright of a program by a person who has acquired it with the knowledge of such infringement.

(2) An act of using a work in a manner prejudicial to the honor or reputation of the author shall be considered to be an infringement of his/her moral rights.
<Amended by Act No. 10807, Jun. 30, 2011>
(3) Deleted <by Act No. 10807, Jun. 30, 2011>

Article 125 (Claim for Damages)

(1) Where the holder of author’s economic right or other rights (excluding author’s moral right and performer’s moral right) protected under this Act (hereinafter referred to as “holder of author’s economic right, etc.”) claims compensation against a person who has infringed on his/her rights intentionally or by negligence for damages sustained from the relevant infringement, if the infringing person has gained any profit by his/her infringement, the relevant amount of profit shall be presumed to be the amount of damages sustained by the holder of author’s economic right, etc.
(2) Where the holder of author’s economic right, etc. claims compensation against a person who has infringed on his/her rights intentionally or by negligence for damages sustained from the relevant infringement, the amount corresponding to that normally gained by an exercise of such rights shall be made as the amount of damages sustained by the holder of author’s economic right, etc., and a claim therefor may be made.
(3) Notwithstanding the provisions of paragraph (2), where the amount of damages sustained by the holder of author’s economic right, etc. exceeds the amount under paragraph (2), a claim for such exceeding amount may be made.
(4) Any person who has infringed on copyright, exclusive publication right (including cases applied mutatis mutandis under Articles 88 and 96), publication right, neighboring right or right of database producer which is registered shall be presumed to have been negligent in the relevant infringement.
<Amended by Act No. 9625, Apr. 22, 2009; Act No. 11110, Dec. 2, 2011>

Article 125-2 (Claim of Statutory Damages)

(1) A holder of author's economic right, etc. may claim considerable damages within the scope of up to ten million won (50 million won in cases of intentionally infringing rights for profit) for each work, etc. whose right is infringed in lieu of the actual amount of damages or the amount of damages determined pursuant to Article 125 or 126 against a person who has infringed on rights intentionally or by negligence before a trial proceedings of the relevant is concluded.
(2) For the purpose of paragraph (1), compilation works and derivative works which use two or more works as their material shall be deemed a single work.
(3) In order for the holder of author's economic right, etc. to make a claim pursuant to paragraph (1), relevant works, etc. shall be registered pursuant to Articles 53 through 55 (including cases applied mutatis mutandis under Articles 90 and 98) before the act of infringement occurs.
(4) In receipt of a claim under paragraph (1), the court may recognize a considerable amount of damages within the scope under paragraph (1) in consideration of the purport of defense and the results of evidence examination.

Article 126 (Acknowledgement of the Amount of Damages)

When the fact is admitted that some damages have been done, but it is difficult to estimate the amount of damage under Article 125, the court may acknowledge a considerable amount of damage, in the light of the purport of pleading and the results of evidence examination.

Article 127 (Claim for Restoration of Reputation, etc.)

An author or performer may demand of the person who has infringed on the author’s moral right or performer’s moral right wilfully or by negligence to take measures necessary for the restoration of his/her reputation in lieu of or together with compensation for damages.

Article 128 (Protection of Author’s Moral Interests after Death)

After the death of an author, his/her bereaved family (referring to the surviving spouse, children, parents, grand children, grand parents, brothers and sisters of the deceased author) or the executor of his/her will may, pursuant to Article 123, claim compensation from a person who has violated or is likely to violate the provisions of Article 14 (2) in respect of the work concerned, or, may, pursuant to Article 127, demand restoration of his/her reputation from a person who has infringed on author’s moral right intentionally or by negligence or who has violated the provisions of Article 14 (2).

Article 129 (Infringement on Rights to Joint Work)

Each author of a joint work or each holder of author’s economic right to a joint work shall be entitled to make the demand pursuant to Article 123 without the consent of other authors or other holders of author’s economic right, or to claim compensation for damages to his/her share in a joint work regarding the infringement on author’s economic right pursuant to Article 125.

Article 129-2 (Provision of Information)

(1) Where deemed necessary for collecting evidence upon request of the party concerned in a lawsuit against the infringement of copyright or other rights protected pursuant to this Act, the court may order the other party concerned to provide the following information that he/she holds or knows:

1. Information capable of identifying the act of infringement or a party related to the production and distribution of illegal copies;
2. Information on the routes of production and distribution of illegal copies.

(2) Notwithstanding the provisions of paragraph (1), the other party concerned may refuse to provide information in any of the following cases:

1. Where any of the following persons might be indicted or found guilty:
1. a. The other party concerned;
2. b. A person who is or was a relative of the other party concerned;
3. c. Guardian of the other party concerned;
2. Where it is intended to protect trade secrets (referring to trade secrets under subparagraph 2 of Article 2 of the Unfair Competition Prevention and Trade Secret Protection Act; hereinafter the same shall apply) or privacy, or where other justifiable grounds for refusing the provision of information exist.

(3) Where the other party concerned fails to comply with the order to provide information without any justifiable ground, the court may recognize argument on information by the party concerned as true.
(4) Where deemed necessary to determine whether there are justifiable grounds prescribed in paragraph (2) 2, the court may require the other party concerned to provide necessary information. In such cases, the court shall not disclose the provided information to anyone, unless it is necessary to hear the opinion of the party concerned who has requested the provision of information or his/her representative in order to determine whether the justifiable grounds exist.

Article 129-3 (Order of Secrecy Maintenance)

(1) Where all of the following grounds have been substantiated in regard to the trade secrets owned by the party concerned in a lawsuit against the infringement of copyright or other rights protected pursuant to this Act (excluding rights to receive compensation under Articles 25, 31, 75, 76, 76-2, 82, 83, 83-2 and 101-3; hereafter the same shall apply in this Article), the court may, by decision, order the other party concerned, an agent representing the party concerned in the lawsuit or other persons who have become aware of the trade secrets from the lawsuit to neither use such trade secrets for purposes other than the purpose of continuing the lawsuit, nor disclose such trade secrets to persons other than those related to the trade secrets and issued with the order under this paragraph, upon request of the party concerned: Provided, That this shall not apply where, until such request is made, the other party concerned, an agent representing the party concerned in the lawsuit or other persons who have become aware of the trade secrets from the lawsuit have already obtained such trade secrets by means other than the perusal of preparatory documents or evidence examination under subparagraph 1:

1. That trade secrets are included in preparatory documents to have already been submitted or to be submitted, or in evidence (including information provided pursuant to Article 129-2 (4)) to have already been investigated or to be investigated;
2. That the use or disclosure of trade secrets under subparagraph 1 for purposes other than the purpose of carrying out the lawsuit is likely to harm the business of the party concerned, and thus it is necessary to restrict the use or disclosure of trade secrets in order to prevent such harm.

(2) The application for an order under paragraph (1) (hereinafter referred to as "order of secrecy maintenance") shall be made in documents stating the following matters:

1. The party subject to order of secrecy maintenance;
2. The facts that are sufficient to identify the trade secrets subject to order of secrecy maintenance;
3. The facts falling under the grounds prescribed in each subparagraph of paragraph (1).

(3) Where an order of secrecy maintenance has been decided, the written decision shall be served on the party subject to order of secrecy maintenance.
(4) Order of secrecy maintenance shall take effect from the time the written decision under paragraph (3) is served on the party subject to it.
(5)An immediate appeal may be made against the ruling that has dismissed or rejected the application for an order of secrecy maintenance.

Article 129-4 (Revocation of Secrecy Maintenance Order)

(1) Where the party who has applied for or received an order of secrecy maintenance fails to meet, or no longer meets, the requirements prescribed in Article 129-3 (1), he/she may request the court keeping the records of proceedings (where no court is keeping the records of proceedings, referring to the court that has issued the confidentiality order) to revoke the order.
(2) The court ruling on the application for revocation of a secrecy maintenance order shall serve the applicant and the other party concerned with the written decision.
(3) An immediate appeal may be made against the court ruling of the application for revocation of the confidentiality order.
(4) A court ruling to revoke a secrecy maintenance order shall take its effect only when it becomes final and conclusive.
(5) Where any person other than the applicant for revocation of a secrecy maintenance order and the other party concerned has received the secrecy maintenance order about the relevant trade secrets, the court that held the trial to revoke the confidentiality order shall immediately notify such person of the purport of the trial to revoke the secrecy maintenance order.

Article 129-5 (Notification, etc. of Application Including Perusal of Records of Proceedings)

(1) Where a decision under Article 163 (1) of the Civil Procedure Act has been made on the records of proceedings of the trial that issued an secrecy maintenance order (excluding a trial that has revoked secrecy maintenance order in whole), if the party concerned applied for the perusal, etc. of the part containing confidential information prescribed in the same paragraph through a person not subject to secrecy maintenance order in the relevant lawsuit, the court administrative officer, junior court administrative officer, chief court clerk or senior court clerk (hereafter referred to as "junior court administrative officer, etc." in this Article) shall notify a person who made application under Article 163 (1) of the Civil Procedure Act (excluding a person who applied for the perusal, etc. thereof) of the purport of such an application, right after the application for perusal, etc. thereof is made.
(2) In cases falling under paragraph (1), no junior court administrative officer, etc. shall allow the person who has taken the procedures for such application for perusal, etc. the part containing confidential information under paragraph (1) until two weeks pass from the date of the application under paragraph (1) (where the application for the secrecy maintenance order for the person who has taken the procedures for such application is made within the period, referring to the point when the trial for such application becomes final and conclusive).
(3) In regard to allowing the person who has applied for the perusal, etc. under paragraph (1) to peruse, etc. the part containing confidential information under paragraph (1), paragraph (2) shall not apply where all of the parties concerned who have made an application under Article 163 (1) of the Civil Procedure Act consent thereto.