Intellectual property rights
IP protection for software
What intellectual property rights are available to protect software and how do you obtain these rights?
The source code of software is protected as a copyrighted work under copyright law if the creativity of its expression is acknowledged, and also as a trade secret under the Unfair Competition and Protection of Trade Secrets Act if it has been managed as a secret without being disclosed to the public and has an independent economic value. Although registration is not required to have a copyright, without registration as a copyright, it is not possible to assert copyright in a source code against a third party with regard to the transfer of the author’s property rights related to the source code.
Meanwhile, an invention of a computer program method or business method can be protected as a patented invention if information processing by software on a computer is specifically realized using hardware (Supreme Court decision 2007Hu256 reproduced 24 December 2008).
IP developed by employees and contractors
Who owns new intellectual property rights developed by an employee during the employment relationship? Do the same rules apply to new intellectual property rights developed by contractors or consultants?
According to the Copyright Act, the employer acquires copyright as the author of the work created for hire (namely a work created by an employee within the framework of his or her work duties) if it is published under the employer’s name, unless otherwise provided in the contract or the work rules. But in the case of a computer program developed by an employee, the employer becomes the author regardless of whether the computer program is published under the employer’s name.
Meanwhile, according to the Invention Promotion Act, if an invention by an employee, manager of a company or a public official created with regard to his or her duties has a character of belonging to the field of work of the company, state or local government employing the inventor and the act that led to the creation of the invention belong to the current or previous work tasks of an inventor, the inventor will obtain a patent, model tool and design rights for the invention. However, the employer can succeed in the rights granted to the inventors through the contract or employment regulations as long as it pays reasonable compensation to the inventor.
Joint ownership
Are there any restrictions on a co-owner of intellectual property’s right to use, license, charge or transfer its right to intellectual property?
Unless otherwise agreed in writing, each joint owner of a patent may independently practice the patented invention without the consent of all other joint owners in accordance with the Patent Act. However, no co-owner may, without the consent of all other co-owners, transfer his part of the patent or establish any lien over it, or grant a license of the patent to a third party. This rule applies equally to design rights and trademark rights. Similarly, with respect to copyright, an author’s economic right in a common work may not be licensed to a third party without the unanimous consent of all holders of the author’s economic right, and no holder of the author’s economic right shall have the right to transfer by assignment or pledging their part of the author’s financial right without the consent of the other authors.
Trade secrets
How are trade secrets protected? Are trade secrets kept confidential during court proceedings?
For information to be protected as a trade secret, such information must not be publicly known, have independent economic value and be treated as a secret.
The court may restrict access to parts of case records that contain secrets of the parties to protect trade secrets even during a trial.
Brand building
What intellectual property rights are available to protect branding and how do you obtain these rights? How can fintech companies ensure they don’t infringe on existing brands?
Branding can be protected under the Trademark Act. Trademark rights are established with registration at the South Korean Intellectual Property Office. A trademark holder has the exclusive right to use his registered trademark in relation to designated goods.
The brand can also be protected without trademark registration if the emblem is widely known in South Korea. Therefore, if there is a brand to be used by fintech companies, they are advised to consider whether the brand is identical or similar to another brand that is already a registered trademark in South Korea, or another person’s name, trade name, trademark, container or package of goods, or any other mark indicative of another person’s goods or business, to the extent that it causes confusion with another person’s goods, commercial facilities or activities.
Remedies for IP infringement
What remedies are available to individuals or companies whose intellectual property rights have been infringed?
The owner of the infringed intellectual property rights may seek compensatory damages and injunctive relief (such as destruction of infringing items, removal of facilities provided for infringement) as well as criminal penalties by filing a criminal complaint against the infringer.
