Korea Update: Legal Protection for Unauthorized Use of Data and Images of Public Figures Amendment to the Unfair Competition Prevention and Trade Secret Protection Act

An amendment to the Unfair Competition Prevention and Trade Secret Protection Act (the “UCPA”), promulgated on December 7, 2021, revised the list of acts of unfair competition by adding the two following acts: (i) unauthorized acquisition and use of data, and use of data for improper purpose, and (ii) unauthorized use of name, likeness, and other indicia of personal identity of a public figure. The amended UCPA is expected to become effective on April 20, 2022. We present below a summary of each amendment focusing on how the amended UCPA intends to reinforce the legal protection for data owners and public figures with respect to unauthorized exploitation of data, in the case of data owners, and images, in the case of public figures.

Data Protection

Article 2(1)(k) of the amended UCPA defines the term data as “technical or business-related information that (i) can be provided to a specified person(s) for business purposes, (ii) is electronically accumulated and managed in a considerable amount, and (iii) is not managed as secret.” By the foregoing definition, a trade secret will not fall within data.

Article 2(1)(k) of the amended UCPA specifically enumerates the following as an act of unfair competition: (i) acquisition of data by an unauthorized person by improper means, or use or disclosure of improperly acquired data: (ii) use, disclosure, or provision to third parties of data by an authorized person in order to gain improper profits or to inflict harm on the data owner; (iii) acquisition of data or use or disclosure of acquired data, in each case, with knowledge of (i) or (ii); and (iv) sale of devices used for circumvention of technical security measures for data protection.

Anyone who engages in any of the foregoing acts of unfair competition may be subject to civil, administrative and criminal sanctions. Civil sanctions may include injunctive relief and monetary damages. Administrative sanctions, such as administrative corrective recommendations, can be sought by filing a petition to the Korean Intellectual Property Office for administrative investigation. Lastly, an act of circumventing technical protection measures can be criminally punished by imprisonment for up to three years or by a fine not exceeding KRW 30 million (approx. USD 25,000).

This amendment to the UCPA will provide a stronger measure for data protection in addition to the pre-existing legal theories provided by other statutes, such as the Copyright Act (which provides copyright protection for database), the UCPA (which also provides legal protection for trade secrets), and the Criminal Code (see e.g., Korean Supreme Court, 2004Do7962, July 14, 2005, holding that computer files, including design drawings, that an employer has invested considerable time and efforts in creating constitute important business assets, and the employee breached its fiduciary duty by disclosing such computer files). However, we would also need some clarifications on which legal theory to apply, and when and how to apply each legal theory. For example, while Article 93 of the Copyright Act provides that “conflicting with ordinary exploitation of database or unfairly infringing the interests of database producers” constitutes database infringement, the difference between database infringement under the Copyright Act and “improper means” and “for improper purposes” in the amended UCPA is yet unclear. Since the standard for determining which legal theory to apply needs to be established through interpretation of the amended UCPA and other statutes listed above by the courts in future cases, it is recommended to monitor upcoming court decision issued after the amended UCPA comes into force.

Right of Publicity

Article 2(1)(l) of the amended UCPA defines the following as an act of unfair competition: “an act of infringing on economic interests of another by engaging in unauthorized use of indicia of personal identity of such another, including the name, likeness, voice and signature, that is widely known in Korea and have economic value for business purposes in a manner contrary to fair commercial practices or competition order.”

Prior to the introduction of Article 2(1)(l) of the amended UCPA, there has been a split among lower courts regarding whether or not to recognize the right of publicity. As the amended UCPA has codified the right of publicity into the UCPA, conflicting rulings by lower courts on the rights of publicity are likely to be resolved to some extent. However, it is difficult to consider that Article 2(1)(l) of the amended UCPA provides a new set of rights, as the Korean Supreme Court has already recognized the right of publicity in one of its decisions. In Korean Supreme Court, 2010Ma6525, March 26, 2020, the Supreme Court held that an unauthorized use of photos of a famous pop group constitutes an act of unfair competition under Article 2(1)(k) of the current UCPA, and granted an injunctive relief and monetary damages.

While statutory recognition of the right of publicity into the UCPA may have cleared issues relating to its existence, there are still some outstanding related issues. For example, the standard is yet unclear for determining whether an indicia of personal identity has been misappropriated “in a manner contrary to fair commercial practices or competition order.” Also, the issues relating to assignment or vesting of the right of publicity remain unresolved. Meanwhile, an amendment to the Copyright Act defining the publicity right as a type of property right is being discussed at the National Assembly. It is therefore recommended to monitor the potential amendment to the Copyright Act and its impact on the amended UCPA.

By Yulchon, Korea, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact korea@transatlanticlaw.com 

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