South KoreaCopyright Act, Prohibition of Neutralizing Technological Protection Measures (Articles 2(28), 104-2, 104-8 and 136(3))
Copyright Act of the Republic of Korea, Arts. 2(28) and 104-2
In force since .
A copyright and text and data mining (TDM) rule binding public and private bodies.
- Obligation class
- Access restriction
As of .
What it requires
- Do not, without proper authority and intentionally or negligently, remove, alter or bypass a technological protection measure that the right holder, or a person with the right holder's consent, has applied to effectively prevent or deter access to a work protected by the Copyright Act, unless one of the exceptions in Article 104-2, paragraph 1 applies.
- Do not manufacture, import, distribute, transmit, sell, rent, offer to the public, advertise for sale or rental, or hold for distribution a device, product or part, or provide a service, that is promoted for neutralizing a technological protection measure, has only a limited commercial purpose or use other than neutralizing it, or is mainly designed, made or adapted to enable or facilitate neutralizing it.
These lines are LexLint's reading of the law's text, as of .
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Article 136, paragraph 3, item 3-3 makes it an offence to violate Article 104-2, paragraph 1 or 2 as a business or for profit, punishable by imprisonment of up to three years or a fine of up to 30 million won, or both.
Penalty structure
The ceiling on the fine for violating Article 104-2, paragraph 1 or 2 as a business or for profit; imprisonment of up to three years may be imposed instead of or with the fine (Article 136, paragraph 3, item 3-3).
- Rule
- Fixed only
- As of
- Currency
- KRW
- Fixed cap
- 30,000,000
What this law does
Article 2, item 28 of the Copyright Act defines a technological protection measure as a technical measure that the right holder, or a person with the right holder's consent, applies in connection with the exercise of the rights protected by the Act to effectively prevent or deter access to the protected works (item 28(a)), or to effectively prevent or deter infringement of those rights (item 28(b)).
Article 104-2, paragraph 1 provides that no one may, without proper authority and intentionally or negligently, neutralize a technological protection measure under item 28(a) by removing, altering or bypassing it. Among the exceptions in paragraph 1 is cryptography research by a person who lawfully obtained a copy, limited to a person who made a considerable effort to obtain the right holder's permission for the use but did not obtain it.
Other exceptions cover protecting minors from harmful online works, identifying and disabling the undisclosed collection of personal identifying information, law enforcement and security, acquisition decisions by schools and non-profit libraries, reverse engineering for interoperability, and security testing, and an exception notified by the Minister of Culture, Sports and Tourism takes effect for three years.
Paragraph 2 separately bars anyone, without proper authority, from manufacturing, importing, distributing, transmitting, selling, renting, offering to the public, advertising for sale or rental, holding for distribution, or providing as a service a device, product or part that is promoted for neutralizing a technological protection measure, has only a limited commercial purpose or use other than neutralizing it, or is mainly designed, made or adapted to enable or facilitate neutralizing it.
Paragraph 3 lifts the paragraph 2 bar, for a measure under item 28(a), in the cases of paragraph 1, items 1, 2, 4, 6 and 7, and, for a measure under item 28(b), in the cases of paragraph 1, items 4 and 6.
Article 104-8 lets the right holder claim cessation or prevention of the infringement, security for damages, or damages or statutory damages in their place, against a person who violates Articles 104-2 to 104-4, and, against a person who acted under Article 104-2, paragraph 1 without intention or negligence, only cessation or prevention.
Article 136, paragraph 3, item 3-3 provides imprisonment of up to three years or a fine of up to 30 million won, or both, for a person who violates Article 104-2, paragraph 1 or 2 as a business or for profit. Article 104-2 was newly inserted on . The supplementary provisions of the Act of that date, Act number 10807, provide that it takes effect on the day the free trade agreement between the Republic of Korea and the European Union and its Member States enters into force. The official version list records Act number 10807 as in force from .
When LexLint raises it
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