Let's continue the discussion on “Introduction to Intellectual Property and Understanding Intellectual Property”. Among them, today we will look at “Infringement of Copyright and Remedy 1”.
Infringement of copyright refers to the act of using the rights granted to the copyright holder in a literary work without the permission of the copyright holder. Even with the permission of the copyright holder, if it is outside the scope of the permitted conditions, it is also copyright infringement. Except for cases where copyright is restricted by the Copyright Act, in case of copyright infringement, relief can be obtained through dispute mediation, civil litigation, and criminal litigation.
1. Copyright infringement
As stated above, copyright infringement refers to the use of a literary work without the permission of the copyright holder. Infringement of copyright means infringement of each share constituting the copyright, such as the right to reproduce, the right to publicly transmit, or the right to perform. In addition, even if it is not a direct infringement of copyright, the act defined in Article 124 of the Copyright Act is also regarded as an infringement of copyright.
2. Determination of Copyright Infringement
In determining copyright infringement, a judgment must first be made as to whether the part is protected by copyright. A distinction must be made between ideas that are not protected by copyright and expressions that are protected by copyright law. This is called the idea-expression dichotomy. Determination of copyright infringement is based on how similar these expressions are. The key in this determination is to determine substantial similarity, i.e., how similar they are. First of all, it is not easy to determine whether there has been imitation, so it is common to prioritize whether the defendant has had an opportunity to access the literary work of the plaintiff. The occurrence of the same error between two literary works is also used as a factor in judging this substantial similarity. For this reason, there are many cases where some copyright holders intentionally add errors to their literary works.
3. Remedies for Copyright Infringement
1) Copyright Dispute Mediation: The most basic solution to copyright disputes is litigation, but in general, due to the time, effort, and expense involved in litigation, alternative dispute resolution procedures has been given substantial attention. The Copyright Commission is in charge of mediating and resolving these copyright disputes.
2) Civil Remedies: The copyright owner can request the suspension of infringement against the person who infringes or is likely to infringe the right, and can claim the prevention of infringement, compensation for damages, and restoration of reputation. It can also claim necessary measures, such as the destruction of objects created by the infringement.
3) Criminal Remedies: These are remedies for victims to prosecute the infringer to the investigation agency. Infringers who have been prosecuted will be punished according to the type of crime. The Copyright Act stipulates penalties for violations of certain obligations as well as acts of copyright infringement. A person who infringes copyright is punished by a fine of not more than 50 million won or imprisonment for not more than 5 years, and an infringer of moral rights is punished by a fine of not more than 30 million won or imprisonment for not more than 3 years. In all cases, only intentional offenders are punished, and there are other crimes such as illegal publication or violation of specifying the source.
Today, we learned about “Copyright Infringement and Remedy 1”. Next, we will discuss “Copyright Infringement and Remedies 2”.
*I am a student learning IP, not an IP expert. Translation is also google translator and my insufficient English skills. I hope it will be helpful for those who do not have the relevant knowledge or who want to learn about IP.
*The above is what I learned from a book compiled by the Korean Intellectual Property Office and Korea Invention Promotion Association (published by Pakmungak) entitled “Introduction to Intellectual Property, Understanding Intellectual Property”.
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