To combat the distribution of counterfeit Korean pop (“K-Pop“) merchandise, the online market has been closely monitored since February 2022. The Korea Intellectual Property Office, in collaboration with the Korea Music Content Association and entertainment firms, conducted this surveillance.
The South Korean Intellectual Property Office and the BTS agency, HYBE, work together to help this eradication effort. This agreement will result in decisive measures to eliminate the selling of counterfeit merchandise. The attempt began in earnest with BTS’ performance in March 2022.
Before the concert, the Special Judiciary Police trademark South Korea Intellectual Property Office will work with HYBE to fight down counterfeit merchandise. The institution also advised fans to avoid purchasing counterfeit merchandise online and buy K-Pop merchandise through official platforms.
The territorial principle
The territorial principle is one of the fundamental principles of international intellectual property law. The territorial principle states that intellectual property law enforcement is confined to the area of the country where the rights are issued, also known as lex loci protectionis.
This principle also permits a country to change its intellectual property laws. To complement the country’s level of technological and economic growth. The territorial principle remains an essential basis in intellectual property law. The further development of international treaties concerning intellectual property rights will continue to support the acceleration of globalization.
Copyright and Trademark Law Jurisdiction in Korea
The Copyright Act of 1957 protects copyright-related regulations in South Korea. Courts, specified administrative bodies, and law enforcement authorities carry out the legal protection of the Copyright Act of 1957 (“Korean Copyright Act”).
The Korea Copyright Commission, often known as the South Korean Copyright Commission, is a non-judicial dispute settlement agency in Korea. Meanwhile, copyright enforcement is managed by the Korea Copyright Protection Agency, also known as the South Korean Copyright Protection Agency. Monitoring, investigating infractions, and taking corrective action are some examples.
Article 3 Chapter I of the General Provisions of the Korean Copyright Act regulates arrangements for breaches that occur outside of the jurisdiction, which is cited as follows:
“..If the relevant foreign country does not protect the works of the nationals of the Republic of Korea, their protection under treaties and this Act may be correspondingly restricted.”
Meanwhile, the regulation regarding trademarks is regulated in the Trademark Act (“Korean Trademark Act”). According to Article 15 of the Korean Trademark Act, there are specific provisions for jurisdictions which are cited as follows:
“Where a trademark manager has been appointed in relation to trademark rights or rights relating to a trademark of a non-resident, the domicile or the place of business of such trademark manager shall be deemed a place where assets under Article 11 of the Civil Procedure Act are located, and where there is no trademark manager, the seat of the Korean Intellectual Property Office shall be deemed a place where assets under Article 11 of the Civil Procedure Act are located.”
Furthermore, Article 11 of the Korean Civil Procedure Code has provided a regulation regarding a person who lives outside Korean territory, which is quoted as follows:
“A lawsuit concerning a property right against a person who has no domicile in the Republic of Korea or against a person whose domicile is unknown may be brought to the court located in the place of the objects of a claim or those of the security, or any seizable property of a defendant.”
Based on the description above, it can be argued that if the foreign country concerned does not protect the works of South Korean citizens, then the protection for their citizens can also be limited.
Meanwhile, in the perspective of the Korean Trademark Act, law enforcement or prosecution of trademark infringement by a person who is not domiciled in South Korea or whose location is unknown will be submitted to a court whose jurisdiction covers the place of residence of the object.
Copyright and Trademark Law Jurisdiction in Indonesia
Regulations related to copyright and its protection in Indonesia have been regulated in Law Number 28 of 2014 as last amended by Law Number 11 of 2020 concerning Job Creation (“Copyright Act“). This law applies to all creations and related rights products based on the Copyright Act’s Article 2 letter (c). Users of associated works and rights products are not Indonesian citizens, are not Indonesian residents, and are not Indonesian legal entities. Under the condition:
- the country concerned has a bilateral agreement with the Republic of Indonesia regarding the protection of copyright and related rights; or
- the country concerned and the Republic of Indonesia are parties or participants in the same multilateral agreement regarding copyright protection and related rights.
Furthermore, based on Article 54 of the Copyright Act, the government must prevent copyright infringement and related rights through information technology-based means. In this case, the government has the authority to cooperate and coordinate with various parties. The parties in question are parties from within and outside the country. This action is taken to prevent the creation and distribution of copyright-infringing content and related rights.
So far, Indonesia has not had a bilateral agreement with South Korea specifically related to intellectual property. However, Indonesia and South Korea are member countries of the World Intellectual Property Rights (“WIPO”), both of which have signed the WIPO Copyright Treaty (“WCT”).
WCT adheres to the Most-Favored-Nation (“MFN”) Principle. According to this principle, any benefits, favors, privileges, or immunities relating to intellectual property protection must be immediately and unconditionally granted to nationals of all other member countries.
In addition, it should be noted that the Copyright Act is territorial-based. In other words, copyright-related regulations apply in the country where the law was passed. However, law enforcers in Indonesia can cooperate with other countries regarding legal protection in the intellectual property sector.
Meanwhile, regulations related to trademarks in Indonesia have been regulated in Law Number 20 of 2016 concerning Marks and Geographical Indications as last modified by Law Number 11 of 2020 concerning Job Creation (“Trademark Act”). Regarding the applicable jurisdiction, the Trademark Act in Indonesia has not explicitly accommodated which court forum has the right to settle cases in a violation involving a foreign country.
However, intellectual property law adheres to a territorial principle as previously described. Furthermore, the new conception of choice of law is to apply the country’s law where the loss occurs and the consequences of which are targeted and deliberately intended.
Note: a logo is protected under trademark law. Meanwhile, a photograph is protected under copyright law.
Conclusion
Based on the description above, it can be argued that according to the principles of territorial and positive law in South Korea and Indonesia, law enforcement officers in Indonesia can impose sanctions on parties who violate the intellectual property, especially copyrights, even if the copyright or trademark infringement is committed against a party domiciled in another country.
Furthermore, Indonesia might build bilateral cooperation with South Korea regarding intellectual property law enforcement in the future.
In-depth knowledge of intellectual property is required before safeguarding your work worldwide. To guarantee that you follow the applicable legal criteria of the nation. Please get in touch with us at marketing@ambadar.co.id if you need further information or advice on this topic.
Sources:
- Law Number 28 of 2014 as last amended by Law Number 11 of 2020 concerning Job Creation (“Copyright Act”).
- Law Number 20 of 2016 concerning Marks and Geographical Indications as last modified by Law Number 11 of 2020 concerning Job Creation (“Trademark Act”).
- The Copyright Act of 1957.
- Korea Trademark Act.
- Korea Civil Procedure Act.
- Lydia Lundstedt, Territoriality in Intellectual Property Law (Stockholm University, 2016), p. 91.
- AllK-Pop
