IP & Art

North Korea's legal regulations seem to have a basic framework that is not much different from the laws of liberal democracies on the surface. However, the private economy is underdeveloped, and the basic characteristic is that the whole article is too simplistic and the details are insufficient.

First of all, it appears that the provisions of the law are too abstract. Even there is no regulation according to the principle of the criminal justice system. In other words, it is because there is no specific content on the legal punishment for an act that is illegal. It only vaguely stipulates that in case of violation of the law, criminal responsibility is borne under normal circumstances. This shows the  possibility of arbitrary law enforcement as it is.

And it raises serious questions about the effectiveness of the law. In other words, it proves that there is a significant gap between the provisions of the law and actual implementation. In addition, it should be additionally noted that all legal regulations must explicitly include provisions for taking necessary measures for the maintenance of their social system. Above all, it seems that the maintenance of their existing system takes precedence over everything.

The same applies to intellectual property laws. Among them, if you look at the Copyright Act and the Trademark Act, the industry has not matured properly, so the article is only composed of simple and principled articles. It is difficult to find articles on the basic procedures or the details involved. Therefore, in the extreme, it is seen that there are legal regulations only for the purpose of showing it externally. Therefore, actual operation is seen as a completely separate problem. It is almost difficult to understand the system or its operation status in the industry based on legal regulations alone. However, for an overview of the relevant field, there is no realistic alternative other than examining the relevant legal texts. This time, I would like to take a look at the copyright and trademark fields among the intellectual property fields in North Korea.

North Korea's Copyright Act was adopted by decree of the Presidium of the Supreme People's Assembly in 2001 and has been revised and supplemented in 2012. The total article consists of six chapters and a total of 48 articles on the basics of the Copyright Act, the subject of copyright, the copyright holder, the use of the work, the neighboring right holder, and the guidance and control of the copyright business. Article 1, under the title of the mission of the Copyright Act, stipulates, “To protect the rights of copyright holders by strictly establishing system and order in the use of works, and to contribute to the development of culture, art and science and technology”.

What is unusual is Article 6 (Exclusion of Copyright Protection).

This is because it stipulates that “copyrights for works that are prohibited for publication, publication, performance, broadcasting, screening, or exhibition are not protected.” Therefore, if they do not meet the goals of their communist policy, publication, publication, and performance will be prohibited, and they will not be protected under the copyright law. Therefore, this section may be said to be the most important provision. This is because this clause determines whether the work is protected or not. In other words, in the case of South Korean works, there is a high possibility that they will not be recognized as works under this provision.

The content of moral rights and copyrights is not much different from ours. However, a noteworthy provision is that it stipulates that if the copyright holder intends to transfer the property rights of the copyright holder to a corporation or individual in another country, he/she must obtain approval from the relevant institution. Therefore, when acquiring a North Korean copyrighted work, it is necessary to check the approval of the relevant institution. Otherwise, it will be difficult for the legal effect to be recognized.

The period of protection of the property rights of a work is 50 years after death, not 70 years. In addition, if the copyright holder cannot be found, the relevant institution may obtain permission to use the work. In addition, the right to use the work can be transferred to a third party, and in this case, it is stipulated that the copyright holder or an authorized organization obtain an agreement. The usage fee for works is set by the price setting agency.

One of the cases in which a work can be used without permission from the copyright holder is the case of “copying, broadcasting, or using a work necessary for state management to be used for editing”. This means that if the government wants to use it, it can be used freely and free of charge without any permission from the copyright holder. This is because this regulation serves as an institutional guarantee for the unrestricted use of copyrighted works by the North Korean regime.

The person who performed, recorded, recorded, or broadcast using the copyrighted work or the person to whom his/her rights have been transferred is defined as the neighboring copyright holder and protected. What is most surprising is that there are no explicit provisions regarding the scope of administrative or criminal liability. In Article 47, there is only a general and vague abstract provision that states, “According to the norm, administrative or criminal responsibility shall be imposed on responsible officials and individual citizens of institutions, enterprises, and organizations that have caused serious consequences for copyright business in violation of this Act.” only

Therefore, there is no predictability of the scope of administrative or criminal liability for specific violations of the law. In other words, the arbitrariness of law enforcement is revealed in the text of the law itself. In the case of a dispute, it is basically stipulated that if the dispute is not resolved by consultation, it can be resolved by filing with an arbitration or a judicial institution. Looking at these articles, it seems that arbitration is used surprisingly in North Korea as well. However, it is regrettable that there is no way to know what kind of procedure the actual arbitration is, its meaning and the current status of its use.

The Trademark Law was adopted by the decision of the Standing Committee of the Supreme People's Assembly in 1998 and amended and supplemented by the Decree of the Standing Committee of the Supreme People's Assembly in 2012. The whole is composed of 50 articles in 5 chapters: Basics of Trademark Law, Application for Trademark Registration, Deliberation of Trademark Registration, Protection of Trademark Rights, and Guidance and Control of Trademark Business. Article 2 defines a trademark as “a mark that is revealed by letters, pictures, numbers, symbols, colors, three-dimensional shapes, or combinations thereof to distinguish the same product or service from different producers or volunteers”. However, there does not seem to be a written regulation that recognizes trademark properties for smell or sound trademarks.

Most surprising of all is Article 21. As one of the marks and marks that cannot be registered as a trademark, it stipulates “a mark that has been applied for registration in a country or region that treats Korea (here, North Korea) unfriendly”. Therefore, a trademark registered in Korea may not be registered as a trademark under this Article. In addition, Article 33 stipulates that “trademark rights may not be transferred or permission to use registered trademarks may be granted to institutions, enterprises, organizations and citizens who do not have the relevant qualifications.” Therefore, it is highly likely that the free transfer of trademark rights is not guaranteed based on this provision.

Looking at these articles of law, it seems that it will take a considerable amount of time to reorganize the law into a law that meets international standards. Above all, this problem will not be so simple as the establishment of the industry will lead to the natural revision of the law. In any case, reform of these laws and regulations will begin only when North Korea adopts a more open economic system to the outside world.

Now, I have a strong feeling that the legal text is nothing more than a formal assortment rather than a reflection of the current state of the industry. It is clear that the issue of protection of copyrighted works or trademarks in North Korea will take a considerable amount of time to be resolved. This shows that there are many areas that need to be consulted and discussed with each other in inter-Korean economic cooperation. However, we will have to take a longer breath and, rationally and patiently, watch North Korea to prepare its legal system in line with the level of global standards. Of course, we can provide necessary assistance and cooperation to the extent possible, and in this process, first we need to increase our understanding of North Korean law in general. Only a cool and rational approach and effort without haste will increase the breadth of mutual understanding between the two Koreas. We believe this will lead to positive results in the long term.