Intellectual Property Rights in the U.S.-South Korea Trade Agreement
The Intellectual Property Rights (IPR) Chapter of the U.S.-South Korea trade agreement contains state-of-the-art protections spanning all types of intellectual property, and requirements to join key multilateral IPR agreements. It also contains strong enforcement provisions to ensure that American intellectual property rights are efficiently and effectively protected in South Korea.
Protection for Copyrighted Works in a Digital Economy: The agreement provides for several forms of IPR protection that are important in the digital environment, such as anti-circumvention provisions to prohibit tampering with technologies designed to prevent piracy and unauthorized distribution over the Internet; a framework for the limitation of liability of Internet Service Providers (ISPs) for copyright infringement, reflecting the balance struck in the U.S. Digital Millennium Copyright Act between allowing for legitimate ISP activity and preventing the infringement of copyright; and enhancing the rights of copyright owners over digital copies of their works. The Agreement extends the terms of protection for copyrighted works, including phonograms, consistent with emerging international standards. It also includes rules to prohibit the unauthorized receipt or distribution of encrypted satellite signals to prevent satellite television piracy.
Tough Penalties for Piracy and Counterfeiting: The agreement calls on South Korea to provide strong, deterrent criminal penalties against copyright piracy and trademark counterfeiting, including, for example, Internet piracy and end-user software piracy. It also calls on South Korea to criminalize unlawful camcording of movies in theaters. To strengthen enforcement procedures, the agreement authorizes the seizure, forfeiture, and destruction of counterfeit and pirated goods and the equipment used to produce them. It also permits customs officials and prosecutors to bring an IPR enforcement action without having to wait for a formal complaint from the right holders. Additionally, the agreement provides for customs enforcement against goods-in-transit, to deter violators from using ports or free trade zones to traffic in pirated products.
Patents & Regulated Products: The agreement ensures that the parties will provide robust patent and test data protection, while respecting the Doha Declaration on TRIPS and Public Health. Provisions include a 12-month grace period to permit inventors to publish their inventions; an adjustment of the term of a patent to compensate for certain types of delays by government agencies; protection against arbitrary revocation of patents; and an assurance that patents will be available for a broad spectrum of inventions, including plants and animals. It also fixes periods during which test data submitted to a government for the purpose of pharmaceutical or agricultural chemical product approval will be protected against unfair commercial use. The chapter incorporates provisions to ensure respect for the Doha Declaration on TRIPS and Public Health.
State-of-the-Art Protection for U.S. Trademarks: Under the agreement, trademark protection is extended to sound and scent marks, as well as certification marks. A system to resolve disputes about trademarks used in Internet domain names is required, which is important to prevent "cyber-squatting" with respect to high-value domain names. The principles of priority, exclusivity, and territoriality are required to be applied to trademarks and geographical indications, so that the first person who acquires a right to a trademark or geographical indication is the person who has the right to use it exclusively.