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[IP in Korea] How apart are two Koreas in their copyright systems?

Expert calls for incremental approach in narrowing gaps in copyright issues amid thawing relations

The Korea Herald is publishing a series of interviews on experts in the intellectual property sector. This is the 14th installment. -- Ed.

At the heart of a recent thaw in relations on the Korean Peninsula were two symbolic cultural events: the joint performances of South Korean and North Korean art troupes. The first one took place in February on the sidelines of the 2018 PyeongChang Winter Olympic Games and the second one in Pyongyang ahead of the inter-Korean summit in April.

While this may be an immaterial question for the time being -- what with denuclearization negotiations taking place -- one might ask: who is entitled to the copyright of these performances?

Also, if Seoul and Pyongyang successfully conclude a peace treaty that leads to the easing of cultural and legal barriers, how will creators have their works protected?

Finding the answer first requires a look at how North Korea’s legal system works, according to an expert here.

Choe Kyong-soo, vice chairman of the Korea Association of Copyright Law. (Bae Hyun-jung/The Korea Herald)
Choe Kyong-soo, vice chairman of the Korea Association of Copyright Law. (Bae Hyun-jung/The Korea Herald)

“North Korea’s law does recognize the copyrights of individual creators, but the actual level of protection largely remains nominal, given the reclusive nature of the regime and its communist system,” Choe Kyong-soo, vice chairman of the Korea Association of Copyright Law, told The Korea Herald in an interview.

Choe, who formerly served as chief researcher at the Korea Copyright Commission, in 2015 published a report on North Korean copyright law and inter-Korean cooperation in the copyright sector.

Unlike South Korea, which effectuated its Copyright Act in 1986 and revised it over 10 times to keep pace with the global standard, North Korea has maintained its outdated legal framework for the past 18 years, making only minor changes in expressions, according to the scholar.

“During this period, North Korea joined the Berne Convention (for the Protection of Literary and Artistic Works) in 2003, two years after legislating its own copyright law, but has made little effort to abide by the related requirements,” he said.

One of the features of North Korea’s copyright system is its extensive acknowledgment of state interference, as shown in Article Six of its Copyright Act, which states that “creations which are banned from publication, distribution, performance, broadcasting, screening and exhibition” may not be subject to copyright protection.

“This article effectively means that individuals and groups may be denied of their copyrights at any time, as under the communist system, it is the government that has control over the society’s tangible and intangible assets,” Choe explained.

This comprehensive exception clause, however, is an explicit violation of the Berne Convention and other international norms, he added.

“China used to have a similar clause but was forced to abolish it in 2010 after the United States filed a petition to the World Trade Organization,” he said.

“Should North Korea join the international order as a ‘normal state,’ it will inevitably face pressure to alleviate or remove the exception rule and to conform to the global standard.”

The North might also have to extend its period of protection from the current 50 years after the death of the last surviving author’s death to 70 years as is the case in most developed countries, he added.

Another tricky factor between the two Koreas is that neither legally recognizes the other as an independent country.

South Korea’s Constitution defines the nation’s territory as “the Korean Peninsula and its adjacent islands,” in principle claiming jurisdiction over North Korean land despite the lack of actual control there.

Reiterating the stance, South Korea’s court has repeatedly recognized the creation rights of North Korean residents under South Korean copyright rules.

An example was a Seoul lower court’s ruling in 1989 that a local publisher breached the author’s copyright by publishing “Dumangang.”
The publisher argued that following author Yi Gi-young's defection to the North in 1946, his copyright was passed onto North Korean authorities and thereby no longer subject to South Korea’s copyright protection, but this was denied by the court.

In response to this self-contradictory reality, the two Koreas in 2005 drafted a provisional agreement on their mutual use of copyrights, in the wake of the first-ever inter-Korean summit in 2000.

“The 2005 agreement allowed South Korean users of North Korean copyright works to obtain the copyright holder’s approval and send the license fee through the Foundation of Inter-Korea Cooperation,” Choe said.

“This procedure, however, has been stalled for several years due to the persisting inter-Korean tension under (South Korea’s) past two conservative administrations.”

Marking a turning point in inter-Korean copyright issues was the recent joint performance that took place in Pyongyang in April, Choe explained.

“Despite North Korea’s conventional ban on the distribution of South Korean cultural content, video clips of the performance went viral among North Koreans,” he said.

“The event showed that the communist regime might be willing to make necessary changes to its social and legal systems in exchange for the benefits offered upon joining the international order.”

In the case of the Pyongyang joint performance, the Unification Ministry drafted and signed a one-time copyright contract with North Korean counterparts, agreeing on a free performance and distribution of the content.

But considering swiftly changing inter-Korean relations, the two Koreas -- especially South Korea -- should work on phased measures to ensure creators’ rights in the other part of the peninsula, the scholar pointed out.

“South Korean television dramas and pop songs are sure to grow popular in North Korea, all the more because there is no language barrier,” Choe said.

“This also means that the range of copyright infringement may be extensive, unless we take pre-emptive steps to narrow the gap.”

A practical way would be to adopt a three-step approach, allowing North Korea a grace period in the initial phase and then requesting it to abide by the Berne Convention’s norms, before finally aligning its copyright rules with those of South Korea, he suggested.

By Bae Hyun-jung (