Software copyright

Software copyright (소프트웨어 저작권/软件著作權) is the extension of copyright law to machine-readable software. Software copyright is used by proprietary software companies to prevent the unauthorized copying of their software, or software piracy.

Free and open source licenses also rely on copyright law to enforce their terms. For instance, copyleft licenses impose a duty on licensees to share their modifications to the copylefted work with the user or copy owner under some circumstances. No such duty would apply had the software in question been in the public domain.

Key words
copyright, software piracy, crackdown, infringement, statutory damages

Protection of Software
Historically, computer programs were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object.

In the United States, the court decisions such as Apple v. Franklin clarified that the Copyright Act gave computer programs the copyright status of literary works. Further, in 1998, the U.S. Congress passed the Digital Millennium Copyright Act (DMCA) which criminalizes evasion of copy protection (with certain exceptions), destruction or mismanagement of copyright management information. DMCA exempts Internet Service Providers (ISPs) from liability of infringement if one of their subscribers infringe.

Copyright Protection Regime
Keeping abreast with the global trend, Korea has incorporated computer programs and databases as copyrighted works in the Copyright Act (저작권법/著作權法) as follows.

Article 2 (Definitions) of the Copyright Act
 * 1 - 15. Omitted
 * 16. “Computer program works” shall mean creative production expressed as a series of statements or instructions used directly or indirectly in an computer or other device (hereinafter referred to as “computer”) which has an information processing ability in order to obtain a certain result;
 * 19. “Database” shall mean a compilation that arranges or composes subject matters systematically so that one can individually access or search such subject matters;
 * 34. "Decompilation of program codes" shall mean reproduction or conversion of the codes of computer program works in order to obtain information needed to allow interoperation between(necessary for the compatibility of independently-created computer program works with other computer programs.

Article 4 (Examples of Works, Etc.)
 * (1) The following shall be the examples of works referred to in this Act:
 * 1 - 8. Omitted
 * 9. Computer program works.

Article 10 (Copyright)
 * (1) The author shall enjoy the rights prescribed in accordance with Articles 11 to 13 (hereinafter referred to as “author’s moral rights”) and the rights prescribed under Articles 16 to 22 (hereinafter referred to as “author’s property rights”).
 * (2) The copyright shall take effect on the date a work is created regardless of the fulfillment of any procedure or formalities.

Reinforced Remedies
As the international criticism mounted that the use of pirated software remains noticeably above the OECD average, the Korean government has introduced a criminal leverage in the Copyright Act, i.e., Article 123 (3). As a result, a copyright holder may request criminal charges be brought against a defendant using the software in business. Also there have been regular or irregular crackdown to discourage software copyright infringing practices.

In addition, the right holder victim of piracy may drop the charges if he/she finds a settlement adequate subject to Article 125 of the Copyright Act. In this manner, a de facto plaintiff can avoid the costs of litigation and effectively pursue enforcement even when confronting smaller-scale infringement.

Article 123 (Right to Demand Cessation of Infringement, Etc.)
 * (1) Any person who has a copyright or other rights protected pursuant to this Act ( Omitted ) may demand a person infringing on his rights to cease such act and demand a person likely to infringe on his rights to take preventive measures or to provide a security for compensation for damages. 
 * (2) If a person who has a copyright or other rights protected pursuant to this Act makes a demand in accordance with Paragraph (1), he may demand the destruction of the goods made by the act of infringement or other necessary measures.
 * (3) In the cases of Paragraphs (1) and (2), or in the case where a criminal indictment under this Act has been filed, on a application of a plaintiff or accuser, the court may, with or without imposing provision of a security, issue an order to temporarily cease the act of infringement, seize the goods made by the act of infringement, or take other necessary measures.
 * (4) In the case of Paragraph (3) where a judgment is final and conclusive was made that no infringement of a copyright and other rights protected under this Act has occurred, the applicant shall pay compensation for the damages caused by his application.

Article 125 (Claim for Damages)
 * (1) Where the owner of author’s property rights or other rights (excluding author’s and performer’s moral rights) protected pursuant to this Act (hereinafter referred to as “owner of author’s property rights, etc.”) claims compensation for damages that he sustained by the act of infringement from a person who has infringed on his rights intentionally or negligently, the amount of gain shall be presumed to be the amount of damages that the owner of author’s property rights, etc. sustained, if the infringer has made a gain by his act of infringement.
 * (2) Where the owner of author’s property rights, etc., claims compensation for damages that he sustained by the act of infringement from a person who has infringed on his rights intentionally or negligently, the amount which he would normally be entitled to receive by exploiting his rights may be claimed as the amount of damages sustained by the owner of author’s property rights, etc.
 * (3) Notwithstanding Paragraph (2), if the amount of damages that the owner of author’s property rights, etc. sustained exceeds the amount of money as prescribed in Paragraph (2), he may also claim the amount in excess as compensation for the damages.
 * (4) Any person who infringes upon registered copyrights, publication rights, exclusive publication rights of programs, neighboring rights, or rights of database producers shall be presumed to have been negligent in his act of infringement. 

Article 126 (Presumption of the Amount of Damages)
 * In those cases where damages are recognized but difficult to estimate as provided in foregoing Article 125, the court may set a reasonable amount of damages by taking into consideration the gist of arguments and the results of examination of evidence.

Compromise under Discussion
With the new Act enforced in due course and the Free Trade Agreement (FTA) negotiations with the United States going on, there occurred changing perceptions of intellectural properties. While right holders and the Korea Software Property-right Council (SPC, (사)한국소프트웨어저작권협회) argue that strong deterrence of software piracy is needed, the [http://www.kosupa.or.kr Korea Software User Protection Associates (KOSUPA, (사)한국소프트웨어저작권사용자보호협회) believes that crackdown is excessive and misdirected.

In view of the presence of statutory damages as stated in Article 126 of the Copyright Act and for the legitimate defenses of defendants, there is no need to continue criminal enforcement of minor cases of copyright infringement. So it could be considered to remove small-scale software piracy from the purview of law enforcement, or to make mandatory arbitration a prerequisite to the bringing of a criminal complaint.