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December 2021
December 2021Amendment to the Unfair Competition Prevention and Protection of Trade Secret Act
Amendment to the Unfair Competition Prevention and Protection of Trade Secret Act has been published that prescribes an act of unjustly obtaining or using data and an act of unauthorized use of image or name of a famous person as acts of unfair competition.
The provision prohibiting unjustly obtaining and using data goes into effect on April 20, 2022, and the provision prohibiting an unauthorized use of image or name of a famous person goes into effect on June 8, 2022.
- An Act of Unauthorized Use of Image or Name of a Famous Person Established as an Act of Unfair Competition
A new provision for protection of right of publicity, such as name and image, etc., of a famous person has been established.
With recent rapid expansion of the influence of the Korean Wave, such as Squid Game, BTS, etc., products and services utilizing such contents are becoming diversified. Beverage products with image and signature of an idol singer engraved and advertisements utilizing images suggestive of famous actors are coming out daily. At the same time, the reality is that illegal products and services making unauthorized use of images and names of Korean Wave stars are popping up everywhere.
Such an act of unauthorized use is an act free-riding on the long-term investment of efforts and money by members of the Korean entertainment industry. However, to date, provisions that can regulate such unjust acts appropriately have been lacking in Korea.
While some unauthorized use of images or names of famous people can be restricted based on the Constitution and the Civil Code, this is merely protecting names and images as moral rights, so the protection is limited to protection against emotional distress. As a result, even in case names or images of famous athletes and movie stars are used in advertisements, etc. in an unauthorized manner, the victims are compensated far less than actual damages that occurred, so proper protection has not been available for monetary damages.
According to the Unfair Competition Prevention Act as amended, in case economic damages are caused by unauthorized use of names or images of famous people, obtaining civil remedies, such as request for injunction, request for compensation for damages, etc., and relief through administrative investigation or recommendations of correction by the Korea IP Office, etc. are now possible.
- An Act of Unjustly Obtaining and Using Data Established as an Act of Unfair Competition
This amendment to the Unfair Competition Prevention Act contains a provision regulating an act of unjustly obtaining and using data generated for the purpose of trade as an act of unfair competition. This is to securely lay the protective foundation for secure trade of data that is taking off as an essential resource comparable to financial capital in the digital era.
According to the amendment, the victim of an act of unjustly obtaining and using data may utilize relief provisions, such as request for injunction or request for compensation of damages, an administrative investigation or recommendation for correction by the Korea IP Office, etc. The amendment will go into effect on April 20 of next year at the same time as the Basic Law for Promotion of Data Industry and Encouragement of Use.
The amended Act seeks to protect the data owner by establishing only the act of unjustly obtaining and using data that has been accumulated and managed for the purpose of trade as an act of unfair competition, as granting exclusive right to data itself would discourage use of data and disrupt development of data industry, which is still in the incubation stage.
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