Jan 24, 2008

"Fair Use" Korean Copyright law

Appeared in the Korea Times on Jan. 25, 2008


Dear Professor Hayes : I am in the process of completing a book on the modern history of the Republic of Korea. A good deal of my work cites news reports, published journals, and first hand reports mentioned in other books, Web sites and personal blogs. My book chronicles the modern developments from the eyes of foreigners who reside or resided in Korea. My publisher wants to confirm that Korea has a "fair use" doctrine, therefore, allowing me to cite the works of others.


Author in Rhode Island

Dear Author : In general, the copyright holders, in Korea, may solely economically exploit a copyrighted work for the life of the author of the work plus 50 years.

Korean Copyright Law provides that copyright infringers may be held liable in civil court and even punished in criminal court. In recent years, the Korean prosecution has been vigorous in prosecuting copyright infringers and the court system has been more willing to hand out sizeable monetary damages in the civil court and jail sentences for repeat offenders in criminal courts.

However, the Korean Copyright Act provides "fair use" type exceptions. Korea, theoretically, doesn't have a fair use doctrine, but the exceptions enumerated in Section 6 of the Copyright Act under the heading Limitations on Authors' Property Rights acts in a similar manner as the commonly understood notion of "fair use."

For example, Article 25 of the Copyright Act permits making "quotations from a work already made public, if they are within a reasonable limit for news reports, criticism, education and research, etc., and are compatible with fair practice."

However, the user of the work, as stated in Article 34, must clearly indicate the source of the quotations.

Courts have interpreted these clauses to allow even lengthy quotations from copyrighted works if the work manages to expound on the work in a meaningful manner.

Hence, author, if your work is an original work that uses only "quotations" from other works and clearly cites that the quotations are from other works you should not be in jeopardy of violating the rights of the copyright holder.

The Korean Copyright Law may be found at www.ahnse.blogspot.com or for a fee at the Korean Legislative Research Institute Web site at http://elaw.klri.re.kr/indexE.jsp.

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SeanHayes@ipglegal.com

Jan 15, 2008

Going Green

Going Green

Appeared in the Korea Times on Jan. 16, 2007

By Sean Hayes

My father has gone green. No my father has not been transformed by Al Gore's ``Inconvenient Truth." He has been transformed by market mechanisms that have encouraged him to go green. My father is a conservative conservationist and he doesn't even know it.

Yes, my father, proudly, has purchased the liberal do-gooder mother ship ― the Toyota Prius. No he didn't accept the free Al Gore bumper sticker or the dinner with Jane Fonda.

Last year, in the United States, the Toyota Prius, for the first time, outsold the highest selling sports utility vehicle- the Ford Explorer.

My father and many others purchased this gas-electric hybrid because it gets 22 kilometers per liter, many states don't impose sales tax on the car, a federal tax credit is available, the car has a mid-size car feel, it doesn't cost considerably more than a non-hybrid and the car operates in the same manner as ordinary cars (no extension cords required).

My father, the conservative conservationist, is helping an increasingly ailing environment and he is doing it with a smile on his face. If we left this issue to our Al Gore type environmental scare tactic-liberals we would be in risk of destroying many of our cherished economic and social freedoms.

Thus, Korea must watch the footsteps of my father and thus encourage consumers and manufacturers to go green or radical conservationists may step-in and strip us of freedoms that we hold so dear.

Thus, the real ``inconvenient truth" becomes obvious. We will lose many of our cherished freedoms through increased government intervention in our lives, if we don't do something to lower our dependency on fossil fuels.

So first, on the supply-side, we need cars and other products that are greener. We need, through tax incentives, to encourage manufacturers and retailers to create and market green products.

Second, through the demand side, we need consumers, like my green father, to be encouraged to purchase green products. This can be accomplished through cutting VAT taxes and increasing tax credits.

Thirdly, we must reframe the environmental issue. The liberal scare tactics help only the liberal political cause and does little to nothing in finding a reasonable solution to the problem. We need to refocus our attention to educating the population on the economic necessity of being responsible citizens and stewards.

Fourth, we must consider and promote the economic opportunities available in being greener. Many companies, because of economic realities, have chosen to go green because it helps their bottom line.

For example, Unilever has increased its efforts to recycle its manufacturing waste products, WalMart has begun to lower its energy dependency, and a plethora of companies have been investing heavily in alternative and renewable fuel sources.

Lastly, we must encourage private innovation. We need to create a profit motive for private enterprises and individuals to develop more eco-friendly buildings and products and thus create a more sustainable way of life.

As in the words of the Republican governor of South Carolina: ``If conservatives cannot reframe, reclaim and respond to climate change with our principles intact, government will undoubtedly provide a solution, no matter how taxing it may be."

Hopefully, the next administration will take heed and lead us down the conservative conservationist path.

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SeanHayes@ipglegal.com

Jan 11, 2008

Exemption From National Health Insurance Plan

Exemption From National Health Insurance Plan

Appeared in the Korea Times on January 10, 2007

Dear Professor Hayes:

I am an American working for a company in Korea. My company and I pay for a private insurance policy, but I also pay for the Korean National Insurance Plan. I found that last month premiums drastically increased and I think it is unfair for me to have to pay for two insurance plans when one of the plans I will never use. Can I and the many other foreign workers in this situation avoid paying for the two insurance plans by canceling the government plan? How can I do this? Paying Twice in Seoul.

Dear Paying Twice:

A revision to the enforcement decree of the National Health Insurance Law came into effect a few months ago. The revision allows for foreigners and Korean nationals that reside abroad to avoid paying into the National Health Insurance Plan if they have alternative insurance coverage.

The insurance premiums, over the last few months, have drastically increased. Employees and employers can feel a not insignificant savings by simply filing a few documents with the National Health Insurance Corporation.

All good law firms in Seoul have notified their clients of this change, since in many cases it can relieve a sizeable burden on companies and employees.

Prior to the amendment many foreigners working for companies in Korea contracted for private insurance plans that covered more than the government insurance plans, thus, many would forgo use of the government insurance plan, but still would be required to pay into the National Health Insurance plan.

To alleviate this burden and also the burden on Korean nationals that reside abroad the revision was made.

To avail of this exemption from payments your employer may simply file with the National Health Insurance Corporation a statement signed by the employee that he or she wishes to withdraw from the health insurance plan and include with the documents information related to your health insurance plan.

For contact information for the local office of the National Health Insurance Corporation please visit: http://www.nhic.or.kr/eng/

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SeanHayes@ipglegal.com

Jan 10, 2008

No American Law Firms in Korea - YET

The KOR-EU FTA passed and thus British law firms will be able to setup shop in Korea over a five-year three-stage phase-in period.  All of the leading British firms have begun building relationships with an eye to formal partnerships. 

KOR-US FTA, however, has stalled because of opposition of some prominent lawmakers in the liberal parties even though the two FTAs are very similar in scope.

We have been approached by many of the British and U.S. firms requesting meetings concerning how to structure a relationship with J & S Law Firm and my team.  From these meetings, I have found that my Team, since it operates in a manner similar to international law firms, is more attractive to the international firms than the top-heavy ubiquitous Korean firms because of these firms' low earnings per attorney and unwillingness to structure into firms with international standards of case management and representation.  They have noticed that they have seen no noticeable quality shift over the past few years, but fear breaking their present relationships out of a fear that they will lose referrals.

The following article is an interesting article on the intention of an American law firm in the Korean market and shows that local firms have nothing to fear and will benefit from these firms' focus on quality, profitability per attorney and equitable management.

Full Disclosure: We have not had a meeting with the firm mentioned in the article.



http://www.ipglegal.com/

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SeanHayes@ipglegal.com
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Korea poised to admit foreign lawyers with FTA (Korea Times)

Lawyers for Los Angeles-based Paul, Hastings, Janofsky & Walker LLP spent so much time in Seoul hotels helping South Korean chipmaker Pixelplus Co. go public in the United States last year, they memorized the room-service menus.

The five Korean-speaking attorneys commuted from Hong Kong for 10 months because South Korea doesn’t allow foreign law firms to open offices.

"It’s like having your office in Los Angeles and all your clients in Chicago," said Kim Jong-han, a U.S.-educated lawyer heading the firm’s Korea group in Hong Kong.

As more foreign investors focus on South Korea, an economy growing at 4.6 percent a year, U.S. and European law firms are eager to hang out their shingles in Seoul and other Korean cities. The path may be cleared soon.

A trade agreement being negotiated with the United States would include initial steps to open South Korea’s legal services market. A bill to implement the change is being reviewed by Korea’s Justice Ministry and might be voted on by the National Assembly in early 2007, the Seoul Bar Association says.

"We want to represent Korea’s leading companies, which are very established global players, and there’s a big advantage to being in Korea where their decision makers are," said Greg Nitzkowski, Paul Hastings’ managing partner in Los Angeles.

Legal services would be among many markets covered by the proposed trade accord, along with textiles, agriculture, pharmaceuticals and automobiles. The next round of talks is scheduled for the week of Dec. 4 in the United States.

The deal may boost trade by $29 billion annually, the U.S. International Trade Commission forecasts.

"Services have become a huge part of what in particular developed countries are exporting," said Steve Norton, spokesman for the Office of the U.S. Trade Representative in Washington. "The U.S. permits foreign-licensed lawyers to work here, and it is reasonable that reciprocal treatment by Korea should be given to U.S. lawyers."

Overseas sales of legal services by U.S. firms total about $5 billion a year, Norton said. The domestic U.S. legal services market is worth about $180 billion annually.

International law firms are following their clients into Asian markets, particularly China and Japan. London-based Clifford Chance, the world’s biggest legal adviser by revenue, said in August it wants to double its number of lawyers in China to 90 by 2010 to advise on corporate takeovers and securities sales.

Several foreign firms, including London-based Linklaters and Chicago-based Baker & McKenzie, have Korean-speaking lawyers in Hong Kong or Tokyo to serve Korean clients.

South Korea, Asia’s third-largest economy, has about 8,000 lawyers serving 48.8 million people — or one lawyer for every 6,100 people, according to Korean Bar Association data. By comparison, the United States has one lawyer for every 268 people, based on data from the American Bar Association website.

Korean lawyers are reluctant to allow foreign law offices because local firms typically are smaller than Western ones, said Ahn Chong-ghee, economic counselor with the Korean Embassy in Washington.

"Our firms are concerned about being overshadowed by foreign competitors," Ahn said. "We know that eventually we will have to open the market, but it will take time."

Seoul-based Kim & Chang is Korea’s largest firm, with about 300 professionals, according to its website. Clifford Chance has 3,300 lawyers. Kim & Chang lawyers declined requests for interviews.

Han Ri-bong, director of international affairs for the Seoul Bar Association, said Korean lawyers don’t object to opening the market as long as it occurs gradually, as in Japan. That nation took about 18 years to fully liberalize its market.

"We don’t expect it will take such a long time in Korea, but we see Japan as a successful model," said Han, a corporate lawyer with Bae, Kim & Lee. "We’re concerned that if there’s an immediate opening it will be disruptive and have a negative effect for Korean lawyers."

Only a handful of Korean firms work with international corporations, creating intense competition for legal services and delaying transactions as potential merger suitors wait in line for advice. It isn’t uncommon for the same firm to represent both buyers and sellers in a transaction, said Paul Rhee, a U.S.-educated lawyer and vice chairman of the European Union Chamber of Commerce’s legal services committee. The chamber is a trade group representing European businesses.

"It’s a race to get to a lawyer in order not to get knocked out of the game," said Sy Kim, an attorney with Sheppard Mullin Richter & Hampton in New York whose clients have included Glovit Inc., a Korean theme-park developer.

Removing restrictions might make South Korea more competitive with China in attracting foreign investment. South Korea received $11.6 billion in direct foreign investment last year, compared with China’s $60.3 billion, according to data from the respective governments.

Pixelplus, which designs semiconductors for cameras in cell phones and personal computers, raised $36 million in its Dec. 20 debut.

"There are so many places where investments get bottlenecked," said James Thoma, a Los Angeles-based lawyer with Greenberg Traurig LLP, whose clients have included Suwon- based Samsung Electronics Co. and U.S. media companies doing business in Korea. "It’s impossible to get the sophisticated legal analysis that investors expect."

South Korea has long had an inward-looking attitude and a distrust of foreign corporations, said William Overhalt, director of the Center for Asia Pacific Policy at Rand Corp., a nonprofit research firm in Santa Monica, California.

"There has been a reaction against foreigners making a lot of money and not paying taxes," Overhalt said.

South Korean prosecutors are investigating Dallas-based Lone Star Funds’ 2003 acquisition of Korea Exchange Bank, the nation’s fifth-largest lender by assets. That investigation has stalled Lone Star’s proposed sale of Korea Exchange to Kookmin Bank, the largest lender.

Lone Star, the biggest foreign investor in South Korea, stands to make a $4 billion profit.

The Korean Supreme Prosecutors Office sought warrants to detain Lone Star cofounder Ellis Short and other current executives to question them about alleged stock manipulation. Those requests were denied by judges on Nov. 3, and prosecutors reapplied hours later. Cofounder John Grayken said last week the probe was driven by an "antiforeign" political climate.

Most of the pressure on the Korean government to open its legal market has come from the United Kingdom because British firms historically have had a bigger presence in Asia, said John Kwon, chairman of the EU chamber’s legal services committee in Korea.

Major U.K. firms such as Clifford Chance and Allen & Overy have had offices in Hong Kong since the 1980s.

The issue of Korean restrictions on legal services came to the fore during the now-stalled Doha round of World Trade Organization talks. The proposed South Korean legislation would apply to all foreign lawyers, not just those from the United States.

Prosecutor Choi Yong-hoon, who oversees the bill’s progress, declined to comment, saying the measure was being reviewed by the Justice Ministry and requires a public hearing. He also declined to comment on when lawmakers might vote.

"A few comments or remarks from me may create a disturbance or a misunderstanding," Choi said. "The matter is closely connected with the current FTA negotiations."

The proposed free trade agreement would be the largest for the United States since the North American Free Trade Agreement of 1994. Trade between South Korea and the United States last year was $71.5 billion.

The fourth round of negotiations, on Jeju Island, South Korea, ended Oct. 27. The talks were marked by scuffles between police and Korean farmers, who oppose opening agricultural markets.

Chief U.S. negotiator Wendy Cutler said during an Oct. 30 conference call that both sides still "have different views" concerning legal services. She wouldn’t elaborate.

The draft bill released in April won’t allow foreign law firms to hire Korean lawyers or set up joint ventures with Korean firms. Yet foreign firms say they will benefit just by being closer to Korean clients.


Linklaters — which advised Lone Star and has 320 lawyers spread across Asia in Hong Kong, Beijing, Shanghai, Tokyo, Singapore and Bangkok — would consider opening an office in Seoul if allowed, said Simon Davies, the managing partner for Asia.

"Given the size of the economy and the size of the deals, it is a very important market," Davies said.

from the Korea Herald

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SeanHayes@ipglegal.com