Software is protected in Korea as a copyrightable work in general under the Copyright Act (the Act) of Korea- having general provisions in Articles 101-2 through 101-7. This covers the protection of computer programs.
Korea is a party to the Berne Convention (effective for Korea as of August 21, 1996) which covers copyrights and intellectual property rights as well as TRIPS and the WCT. The FTAs that Korea has entered into with the US and the EU also provide for a wider degree of protection in terms of protection, remedies and protection measures.
What Constitutes a Computer Program
Under the Act, a “computer program” means a work reduces to writing composed of orders and directions to be used in a device having information process capability for the purpose of obtaining a certain result. The program, therefore, should (i) be enabling a device having the capability of processing and storing functions, (ii) perform some form of meaningful work, (iii) having more than or equal to two sets of instructions and orders, and (iv) be expressed and not just an idea. Under Korean law, software has a broader meaning than just a computer program and is composed of not only computer programs, but also includes flow charts, system architecture and user manuals. Though databases are not categorized as computer programs, the Act protects databases under the specific provisions of Articles 91-98.
To be an author of computer programs in Korea, some level of form of creativity is needed as it is also required for other literary works under the Act. The Supreme Court of Korea has opined that creativity required for authorship of computer programs does not mean originality or novelty but rather that the author did not copy someone else’s work and expressed his or her own thoughts and/or emotions. The Act specifically excludes programming languages, syntax and solutions from protection.
Made for Hire
Generally, the Act as it applies to authors of literary works also applies to authors of computer programs. Since the Act itself does not require a registration process, the author becomes the copyright holder in general upon creation of the work. However, a work made for hire by an employee under the supervision of an employer (regardless of whether the employer is a legal entity, organization, etc.) does not vest the authorship in the employee- the employer is deemed to be the author unless otherwise stipulated in the employment agreement. In such cases, the employer is deemed not just the copyright holder but the author of the work made for hire by the application of the Act, and is entitled to all exclusive rights as the author of the work.
In order for the work to be deemed a work for hire the following conditions must be met:
- A work has been made by an employee working for the employer;
- under the planning or supervision of the employer;
- during the performance of the employee’s duties;
- to be published under the name of the employer.
The computer program can still be deemed confidential and a trade secret of the employer regardless of whether the employer intended to publish the program or not.
It should be noted that the Korean courts have determined that works prepared on special order or commission are not considered works for hire unless the works have been planned and invested entirely by the employer and developed only for the contracting party and published in the name of the employer.
Like many countries, joint authorship exists in Korea. In the case of joint authorship, an author may not exercise the exclusive rights and/or moral rights without the unanimous agreement of the copyright holders. However, a copyright holder may not withhold consent in bad faith. Authors of a joint work are free to designate one of them as a representative for the exercise of their copyrights.
The author of a computer program has exclusive rights to reproduce, transmit and broadcast the work in public. The author also has the right to distribute, lease or rent and to produce any derivative work thereof. Because of the Korea US FTA, the Act was amended in 2011 to allow the holder of the exclusive rights to also have the exclusive right to public transmission which includes broadcasting, transferring and regulating the transmission of a work or database by making the work available to the public via wire or wireless communication.