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PROTECTING
COMPUTER PROGRAM COPYRIGHT
New
Legislation redefines broadcasting,
puts new Limits on reproduction to strengthen
the position of existing copyright holders
The
recent amendment to the Computer Program
Protection Act (CPPA) is expected to
provide greater protection for computer
program copyrights and establish a foundation
upon which the software industry can
achieve greater development. Given the
increased complexity and prevalence
of program copyright infringements,
the amended law grants greater authority
to the appropriate government organizations
for combating illegal reproduction.
It also establishes new provisions defining
reverse engineering, exclusive publication
rights, technological protective devices
as well as provisions for the imposition
of heavy penalties for repeat offenders.
Passed by the National Assembly in December
last year, the amendment will take effect
on July 29th 2000.
One
of the key changes under the amended
CPPA is a newly established provision
(Article 2, Paragraph 9) directed toward
protecting the rights of copyright holders
against acts that circumvent or damage
the protective devices designed to prevent
the illegal reproduction of computer
programs. Such devices include product
IDs, personal ID, passwords, etc.
In
addition, Article 12, Paragraph 6, of
the CPPA defines "reverse engineering"
as an act of analyzing a specific product,
or of evaluating the know-how, level
of technology or method of manufacture
that is embodied therein in order to
develop new technologies. This rule
systematically allows for the reverse
analysis of another's program. This
may be done for the purpose of spurring
computer technology development and
for analytical, educational and research
purposes within the scope of fair use.
Under
the amended Article 16, recognition
is given to exclusive program publication
rights in order to grant the copyright
holder the power to contest infringement
by third parties. This rule was established
especially to provide commercial order
and security to start-up software companies.
This article also applies the legal
means by which funding can be provided
for further software development.
A
new provision under Article 34 authorizes
appropriate government personnel to
remove, delete or dispose of any machines,
apparatus, or programs used to incapacitate
technological devices designed to prevent
the illegal reproduction of computer
programs. This provision also allows
government authorities to request cooperation
from other relevant agencies.
Lastly,
in addition to penal provisions already
in place, the amended CPPA prescribes
heavy penalties of up to five years'
imprisonment or a fine of up to 70 million
won for repeat offenders. Moreover,
the provisions that regulate the registration
of programs by electronic database organizations
for the Program Deliberation and Mediation
Committee (Articles 28 and 42, respectively)
have been revised in the hope of reinvigorating
the software industry.
Copyright
act revisions that address changes in
the multimedia technology environment
The
recent amendment to the Copyright Act
(CA) is aimed at providing further protection
to copyright holders with respect to
the on-line transmission of copyrighted
materials and at more clearly defining
the legal parameters of "broadcasting,"
"performance," and "reproduction."
The revised act passed by the National
Assembly December 1999 is expected to
at least partially answer the need for
greater efficiency in the use and protection
of copyrighted works in today's rapidly
developing technological environment.
The amendment took effect July 1st 2000.
Originally
proposed in a bill submitted by the
Ministry of Culture and Tourism, the
major revisions to the CA are:
-
Clearly defined rights for the on-line
transmission of copyrighted material;
- Reduction of the permissible scope
for private use;
- Inclusion of
the concept of "transmission of
a work within a linked area owned by
a single entity" in the definition
of performance;
- Revision of the
copyright registration system; and
- Reinforced penalties for copyright
infringements
The
On-line Transmission of Copyrighted
Works
The
previous provisions of the CA concerning
the right to broadcast, reproduce or
distribute copyrighted works (hereinafter
referred to as "works") did
not sufficiently define the scope of
electronically transmitted copyrighted
material because the definitions for
"broadcasting," "reproduction"
and "distribution" were made
without considering the characteristics
of on-line transmission. For example,
the CA previously defined "broadcasting"
as the "uni-directional transmission
of a work intended for simultaneous
reception by the public," "reproduction"
as the reproduction of works in "a
tangible media of expression,"
and "distribution" as the
transfer by "assignment or rental
of a work to the public." As such,
"on-line transmission" was
not covered under these definitions
because such transmission does not fall
within the scope of "uni-directional,"
"tangible media," or "by
assignment to the public." The
amended CA thus recognizes a separate
right for on-line transmission, taking
into consideration the characteristics
of digital transmission, i.e., delayed
timing, one-to-one transmission, and
multi-directional transmission.
Moreover,
the amended CA defines "electronic
transmission" under broadcasting
as ‘°The provision of works for use
or transmission by wire or wireless
communication to the general public
at a selected time and place" (Article
2, paragraph 9, subparagraph 2). The
CA also recognizes the right of a copyright
holder to transmit his or her own work.
Reduction
of the Permissible Scope for Private
Use
Given
the capacity of digital technology to
create perfect copies of works, there
has been an urgent need to establish
a mechanism whereby rights of the copyright
holders can be protected from the private
reproduction of a work by digital means.
Many have also recognized the need for
the law to mandate that the public use
of copy machines for the purpose of
business or personal profit be permitted
only upon the consent of the copyright
holder.
Under
the amended CA, Article 27 (Reproduction
for Private Use) provides the copyright
holder with the right to compensation
in cases of infringement by the digital
reproduction of protected sounds or
images. It also makes it permissible
to reproduce a work already made public,
provided that it is for personal use
or within the limited scope of similar
purpose and not for commercial use.
This rule prohibits, however, the reproduction
of works by means of a copying machine
for use by the general public. The electronic
transmission and reproduction of works
by a library for the purpose of maintaining
the library's database are allowed in
the revised law provided that the library
users view such materials from computers
within the confines of the building.
Redefining
"broadcasting" and "performance"
The
primary distinction between "performance"
and "broadcasting" prior to
the amendment was based on the concept
of "the same unintercepted area."
The clause ‘°the mere amplified transmission
of sounds within the same unintercepted
area" was originally excluded from
the scope of broadcasting in the previous
CA, and consequently rendered the distinction
between broadcasting and performance
impractical.
The
amended CA therefore omits the concept
of "the same unintercepted
area" from the definition of broadcasting
and redefines performance as the presentation
of a work or a reproduction to the general
public through acting, ...or other means
(Article 2, Paragraphs 3 and 4). Such
presentation also includes the act of
transmitting a work between linked entities
within an area owned by the same person.
(For example, the transmission of a
copyrighted work between two or more
floors of a building owned by a single
entity).
The
amended CA also redefines broadcasting
under Article 2 to include the concept
of simultaneity, wherein it reads, "the
transmission of information, sounds,
images or other forms of data by wire
or wireless communication for the purpose
of simultaneous reception by the general
public." Another newly established
provision stipulates that works of applied
art, including paintings, calligraphic
works, designs, sculptures crafts, works
of applied art and other artistic works,
are independently copyrightable.
Copyright
Registration System
Information
concerning copyrighted materials and
copyright holders under the amended
CA may be registered and that information
will be made available to the general
public. To this end, the CA stipulates
that the Minister of the Ministry of
Culture and Tourism will publish an
official copyright gazette.
KIM
& CHANG
Tel: (82-2) 3703-1114,
Fax: (82-2) 737-9091/3
E-mail: lawkim@kimchang.com
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