Intellectual Property Rights are defined as legal rights bestowed upon a human being's intellectual creation considered worthy of receiving legal protection. Intellectual property rights include industrial property rights and copyrights. With the advancement of high technologies and culture, new forms of intellectual property rights are emerging such as trade secret rights and topography rights. Industrial property rights and copyrights are governed by the Korean Intellectual Property Office and the Ministry of Culture, Sports, and Tourism, respectively in Korea.

1. Types of Intellectual Property Rights

 Definition of Intellectual Property Rights

Intellectual Property Rights are defined as legal rights bestowed upon a human being's intellectual creation considered worthy of receiving legal protection. The owners of real estate such as buildings and land and moveable assets like machinery can use them or lend them to others in return for compensation, since their ownership serves as property rights. As such, the owners of IPRs can also use or lend their rights to others.

 Types of Intellectual Property Rights

2. Application & Registration Process of Intellectual Property Rights

 Patent Rights 

 The subject matter must be useful (Useful requirement) 
 The subject matter must be new and unknown to the public (Novelty requirement) 
 Even if the subject matter is different from the prior art, it is also required to be a nonobvious improvement over the prior art (Nonobviousness requirement)

 Utility Model Rights 

Subject of Protection

 A shape or a structure of an article, or a combination of articles industrially practicable

Quick Registration System of Utility Model (applicable to applications filed from July 1, 1999 to September 30, 2006)

 Quick registration system was introduced to protect utility model technologies whose lifecycle is comparatively short and easily imitated in order to encourage small- and mid-sized venture companies to develop and commercialize technologies.

 Since rights are granted without any substantial examination of registration conditions, it is possible the rights are defective. Thus, the technology evaluation system was introduced to prevent any victims of defective rights arising from quick registration.

Current System (registration after examination, applicable to applications filed on or after October 1, 2006)

 The advantages of the quick registration system have weakened, since the examination process period has significantly reduced. Also, drawbacks of the quick registration system such as the abuse of rights registered without examination, the burden on applicants stemming from complicated examination process, and low efficiency of examination have surfaced. Against this backdrop, the registration system has been changed to the registration after examination.

 The examination processes of utility model and patent are the same, improving the convenience of civil petitioners.

 Trademark Rights 

Concept of Trademark

 Trademark under the Trademark Act

Trademark was limited to sign, letter, figure, three-dimensional shape, color and combination thereof. Since July 1, 2007, the definition of trademark was expanded to include all kinds of marks that can be visually recognized such as combination of color, hologram, and motion marks. In a broad sense, trademark includes service mark, collective mark, and business emblem, and aims to distinguish the goods related to a person's business from those of other persons.

 Service Mark

Service mark means a mark (trade name of advertisement, finance, and restaurant businesses) which is used by a person who carries on a service business for the purpose of distinguishing his service business from those of others.

 Collective Mark

Collective mark means a mark which is intended to be used directly by a corporation (cooperative association, etc.) jointly founded by the persons who produce, manufacture, process, certify, or sell goods as their business or the persons who carry on service business or which is intended to be used with respect to the goods or services of members of the corporation who are controlled by it.

 Business Emblem

Business emblem means a mark which is used by a person who carries on a nonprofit business for the purpose of indicating his business. (Organization Committee for the Olympics, Korean Red Cross, etc.)

Examination Process

 Publication of Application

The trademark application is published before the establishment of the right is registered in order to collect opinions and allow request for opposition, making the examination fair. An applicant may request for compensation when other persons use the trademark, of which he/she has filed application, without obtaining authorization and subsequently cause losses to his/her business.

 Opposition

Anyone can raise opposition against a trademark whose application has been published within two months (extension is not allowed) from the publication date. Application for opposition should be written in a specified form and include reasons for opposition and necessary evidence.

< Trademark Examination Process Chart >

 Design Rights 

Application and Examination Process

 Application for examined design registration and unexamined design registration

 Design for items whose lifecycle is short such as foods (A1), clothes (B1), bedding (C1), papers and printouts (F3), containers (F4), fabrics (M1), miscellaneous goods (B2), shoes (B5), teaching materials (F1), and office supplies (F2) is registered without examination, while design for other items is registered after examination.

< Application for Design Registration Chart >

Unique Systems under the Design Protection Act

 Similar Design

Any owner of design right or applicant for design registration can register designs similar to his registered design or design for which an application for registration has been filed (basic design) by making changes in shape, pattern, or color of an article in order to prevent imitations or appropriations of the design.

 Design of One Set of Articles

Where two or more articles are used together as one set of articles, and where the design of the set of articles has a unity as a whole, the design may be applied for registration as one design. (a tea set, a smoking set, etc.)

 Secret Design

If an applicant requests for confidentiality, the Korean Intellectual Property Office does not announce the registration of the design for 3 years from the registration date.

3. Copyright Law

Copyright law is composed of three components : copyright, neighboring rights of copyrights, and rights of database producers.

 Copyright works refer to creative works that express emotions and ideology of a person, and they are not limited to literature and arts.

 Creative database is protected as a copyright work. The revision in 2003 allows the protection of database without creativity as a copyright work.

 Copyright law 

Definition

 Copyright is divided into moral right and economic right.

 Moral right exists to protect the honor of the author, and economic right aims to protect the economic benefit of the author.

Types

 Moral right : publication right, name-indicating right, integrity right

 Economic right : reproduction right, performing right, air transmission right, display right, distribution right, rental right, derivative work right

Legal characteristics of copyright

 Generation of copyright: Copyright is generated with creation of works. It differs from industrial property right in that copyright works without registration whereas industrial property right does not work without registration.

 Legal characteristics of copyright: Copyright is an exclusive right. Therefore, a person using a creative work shall obtain permission from a copyright holder before using it. Economic right can be transferred to another person whereas moral right cannot be transferred or inherited.

Limitation of copyright

 Copyright property right is a right to use a work exclusively. Considering that a work is created with direct or indirect support from society, recognizing the monopoly of a work creator without limit is not good for public good.

Protection period of copyright

 Principle: living period of copyright holders and 70 years from the death of copyright holders

 Work of an unknown author, work for business objectives, video works, program works: 70 years from the date of declaration

 Joint works: 70 years from the last death of a copyright holder

 Calculation of protection period: calculated from next year from the year of author's death and declaration of works.

Registration of copyright

 Copyright can be legally protected without registration, but the registration generates legal benefits.

- Estimation : Estimate by registered author, copyright holders, the date of creation, and declaration. When the right of registered works is infringed, it is estimated to be infringed by mistakes.

- Resistance : In case of transfer of copyright property right, those who are transferred the right have the right to resist to the third party.

 Neighboring right of copyright

Definition

 Neighboring right of copyright is bestowed on persons who contribute to distributing copyright works to the public by financial support and creativity.

Neighboring right holders

 Performers : actors, actresses, singers, conductors, musicians, and etc.

 Record producers

 Broadcasters

Right of neighboring right holders

 Some of the right is limited for the benefit of the public. When broadcasting and performing creative works, a person shall obtain permission not only from neighboring right holders but also from copyright holders.

Right of neighboring right holders

 Performance : 50 years from the performance

 Record : 50 years from the release of records

 Broadcasting : 50 years from broadcasting

 Right of database producers 

Copyright law protects the right of database producers. Database without creativity is also protected under the current copyright law.

 Definition of Database

Edited work that arranges and composes subject matter in systematic manner.(Article 2-19)

 Right of database producers

Those who invest considerably in the establishment of database can have the right to reproduce, distribute, and broadcast the work. (Article 93-1)

 Protection period

The right of database producers takes effect after creation of database. The right exists for 5 years. (Article 95-1) If a renewal, review of database occurs with a large investment, the right of database producers takes effect, and exists for five years. (Article 95-2)

 Infringement Remedy 

Principle

 Copyright holders can apply for remedy against the infringement of right.

Civil Charge

 Victims can sue a pirate in the court, claiming for damages.

 The right to claim damages should be filed within 10 years from the infringement, if not, the right expires.

Criminal Charge

 Legal action by copyright holders against pirates.

 Those who infringe on copyright are punished with less than 50 million won in fine or less than 5 years in prison terms.

 Those who infringe on moral right, neighboring right and database producer right can be punished with less than 3 years of prison terms, and less than 30 million fines. (Article 136-2)

4. New Intellectual Property Right

The development of science and technology has increased the need to protect a new intellectual property. There is an international discussion to protect intellectual property that cannot be protected under the existing system. New intellectual property right include traditional knowledge, new plant species, internet domain name, trademarks on taste, sound and smell. 
The government launched National Intellectual Property Commission in May 2011, strengthening support for intellectual property rights.

Source: www.investkorea.org

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