The most comprehensive overhaul of the Korean Copyright Act ("Act") since 2006 is currently before the National Assembly. In recent years, it has become clear that the Act should be updated in order to respond to advancement in technology, promote efficient distribution and use of mass copyright works, and increase protection for content creators. If passed by the National Assembly, the amended Act will significantly impact the rights of both users and creators of copyrighted works. We have summarized some of the more notable proposed changes below.

1. Reproductions for Information Analysis (Article 43)

This is a new provision allowing for the reproduction and transmission of copyrighted works for the purpose of information analysis. The user may reproduce and transmit copyright works (without the copyright owner's prior consent) to the extent necessary to create additional information or value by analyzing mass information if (i) it is not for the enjoyment of the expression contained in the copyrighted works, and (ii) there is legitimate access to the works. This amendment is expected to reduce legal uncertainty relating to such use.

2. Author's Claim for Additional Remuneration (Article 59, etc.)

This is another new provision that offers authors the right to claim additional compensation from the assignee of the copyright work beyond what was originally agreed, if there is determined to be a "significant imbalance." This corresponds to the so-called "bestseller right" that exists in other jurisdictions. This additional remuneration claim cannot be waived upfront through contract, and can be enforced against the original contracting party as well as third parties to whom the right to exploit the works have been subsequently assigned, and must be claimed within ten years from the date of copyright assignment. 

However, the current amendment does not provide any details regarding the calculation of such additional remuneration, nor clear guidance on how to determine whether a "significant imbalance" exists. Trade secret issues may also be raised because the author may request the assignee of the copyrighted work to provide information necessary to calculate this additional remuneration.

3. "Portrait, Etc." Property Rights (Article 126, etc.)

The current Act does not expressly provide for a "right of publicity," and this issue has never been addressed by the Korean Supreme Court. Therefore, it has not been clear whether any right of publicity exists in Korea, nor how such rights can be exercised. The proposed amendment to the Act now provides for a right of publicity, by indicating that "a person who is the object of a portrait, etc. shall have the right to utilize its portrait, etc. for commercial purposes in a manner that can be widely recognizable by the general public." "Portrait, etc." is further defined as the "name, portrait, voice of the specific person and other traits similar thereto." The amendment states that "Portrait, etc." rights are personal, and thus cannot be assigned, attached or offered as security.

4. Extended Collective Management (Articles 155, etc.)

This amendment relates to extended collective management organizations ("CMO") designated by the Minister of Culture, Sports and Tourism to manage IP rights in particular areas, and proposes to allow such CMOs to represent and enter into license agreements on behalf of right holders in those areas, whether or not they are members of the CMO (and thus have expressly entrusted their copyrights or neighboring rights with the CMO). This is intended to make it easier for people to use copyrighted works within the scope of the CMO's authority. However, a right holder that is not a member of the CMO can still opt out by notifying the CMO, in which case users of their copyrighted works will need to obtain their separate consent. 

5. Treble Damages (Article 185(4), (5))

In cases of intentional copyright infringement, the amendment proposes that the court may award the plaintiff compensation up to three times the amount of actual damages. In determining the amount of compensation, the court may consider the intent behind the infringement, scale of damage to the right holder, duration and frequency of the infringement, etc.