Knife Tricks
Paul Lukacs
8/2/2007
The following is a summary of the text of the Copyright Law of North Korea (which refers to itself as the “Democratic People’s Republic of Korea” or “DPRK”). The Copyright Law, of which I possess a Korean- and English-language hard copy purchased while in the DPRK, does not appear to be available on the web for linking.
In reality, North Korean intellectual property laws are worthless and are not respected by the regime in Pyongyang. The United States has accused the North Korean government of creating and selling counterfeits of U.S. currency, cigarettes and pharmaceuticals. According to Human Rights Watch, “North Korea allow[s] neither the freedom of information, association, movement, and religion, nor organized political opposition, labor activism, or independent civil society.” From the perspective of a chaperoned traveler, it was obvious that all copyrightable expression in the DPRK was strictly controlled by the state and was used almost exclusively for propagandistic purposes.
The DPRK government may have promulgated its Copyright Law to provide the appearance that its domestic legislation conformed with provisions of the various multi-lateral intellectual property treaties to which the DPRK has acceded, e.g., the Berne Convention for the Protection of Literary and Artistic Works.
In the following section, I will summarize the DPRK copyright laws as written, without reference to whether or how they are enforced. I will generally follow the method of organization used in the classic treatise International Copyright Law and Practice, edited by Paul Edward Geller and Melville B. Nimmer.
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Constitutional Basis. The copyright laws of the DPRK have a constitutional basis. Article 74 of the 1998 DPRK Socialist Constitution reads: “Citizens are free to engage in scientific, literary and artistic pursuits. [¶] The State shall grant benefits to inventors and innovators. [¶] Copyright and patent rights shall be protected by law.”
Legislative History. The DPRK Copyright Law was adopted on March 21, 2001, by a decree of the Presidium of the Supreme People’s Assembly and amended on February 1, 2006, by a decree of the Assembly as a whole. (The 17-member Presidium of the Supreme People’s Assembly acts as the nation’s legislature for all but the few days a year that the Assembly as a whole is meeting.)
Policy. The DPRK Copyright Law begins with a general statement that its “aim” is to protect the rights of copyright holders and “contribute to the development of literature, art, science and technology by establishing a strict system and order in the use of copyrighted works.” DPRK Copyright Law, Article 1. (All further citations are to the DPRK Copyright Law. A statutory “article” in North Korean legal usage is analogous to a statutory “section” in U.S. legal usage.)
The Law addresses the protection of copyrights held by people who reside outside the DPRK. “The copyright of a corporate body or an individual whose country is a party to a convention to which the DPRK has acceded shall be protected by the convention. However, in the event a corporate body or an individual whose country is not a party to the same convention makes public his works for the first time in the DPRK, the works shall be protected by this Law.” Article 5.
Copyrightability. The DPRK Copyright Law does not specify any minimum standard of originality, creativity or novelty which must be satisfied for a work to enjoy protection.
One potential exception exists. The Law recognizes a copyright in “compiled works such as a dictionary or an anthology.” Article 11. “In this case, the selection and arrangement of the materials should be creative.” Ibid. Thus, the Law appears to impose on collective works an arguably non-mandatory creativity requirement (“should”) which is not imposed on other types of works.
The Law notes that copyright protection will not be accorded to unlawful works. “The copyright of any works whose publication, issuance, performance, broadcasting, show and exhibition are prohibited shall not be protected.” Article 6.
Furthermore, copyright protection will not be accorded to “documents for state management, current news or information data” unless “commercial purpose is pursued.” Article 12.
Types of Works Protected. The Law specifies the types of works that enjoy protection, which are referred to as “objects of copyright.” Article 9 of the Law provides what appears to be an exhaustive list: scientific treatises; novels; poems; music; “theatrical art such as opera, drama, acrobatics and dance”; “visual art such as film and television program”; “fine arts such as painting, sculpture, industrial art, calligraphy and design”; photography; “graphic art such as map, chart, blueprint, sketch and model”; and computer programs.
The Law does not contain an express fixation requirement. (In the United States, a work is only protected by federal statutory copyright if it is fixed in a tangible form, e.g., written on paper or captured on digital audio tape.) Consequently, performances which are not filmed or otherwise recorded may be copyrightable under the DPRK Law.
Derivative Works. The Law recognizes an “independent” copyright for derivative works (which it terms “objects of related copyright”), although the text does not state whether copyright subsists in the entirety of the adapted work or only in the newly added material. Article 10. See also Article 18 (noting that the copyright in a work which is adapted as a “visual art work” can be “exercised independently” of the derivative visual art work.)
A derivative work copyright is expressly recognized for nationalistic adaptations. “Modernized versions of national classics shall also be the object of copyright.” Article 10.
Adapters must apparently obtain permission from the owner of the rights in the underlying work, although this requirement is stated in the form of a prohibition against unauthorized adaptation. “The adapter or editor of a work shall not, in his exercise of copyright, infringe upon the right of the copyright holder of the original work.” Article 19.
“Related Rights.” The Law devotes a separate section (Chapter 5) to the “related right holder,” which is defined as the person or entity who “performs, sound-records, video-records or broadcasts using a copyrighted work.” Article 33. As with the aforementioned editors and adapters, holders of related rights “shall not infringe on the right of the copyright holder to his work.” Ibid.
Related rights holders – which include performers and broadcasters — may reproduce their works and, “in case of need,” disseminate them. Articles 34, 35, 36. The Law does not define what constitutes a case of “need.”
Persons or entities who desire to “use” a performance, recording or broadcasting “shall secure permission” from the holder of the related rights and “shall pay reasonable royalty.” Article 37.
Duration. The term of copyright protection commences upon the publication of a work. Articles 23, 24, 25.
The duration of copyright protection for a work authored by a natural person is the life of the author plus 50 years. Article 23. In the event that a work is co-authored by more than one natural person, the copyright protection for the work continues until 50 years after the death of the last surviving co-author. Ibid. Works authored by “an institution, enterprise or organization” are protected for 50 years from publication. Article 24.
Related rights are protected for 50 years “from the moment of performance, sound- or video-recording or broadcasting.” Article 38.
The 50-year duration for both copyrights and related rights commences on the January 1st following the publication, performance, recording or broadcasting of the work or the death of the author (or last surviving co-author). Articles 25, 38.
Ownership of Copyright. “The copyright holder shall be the author of works in the fields of literature, art, science and technology or the one who inherits the author’s rights.” Article 13. The copyright owner shall hold both “moral and property rights.” Id. (It is not clear if Article 13’s listing of “works in the fields of literature, art, science and technology” acts to limit the listing of “object of copyright” found in Article 9.)
The copyright in a work created “in the name” of a person is “owned” by the person. Article 16. Likewise, a copyright created “in the name” of an entity is “owned” by that entity. Ibid.
A copyright in a joint work created by two or more individuals “shall be held jointly” by the authors. Article 17. The Copyright Law does not expressly address a work jointly authored by two entities.
The issue of ownership of motion pictures and other multi-author audiovisual works is determined with a bright-line rule. “The copyright of a visual art work shall be granted to its producer.” Article 18.
Works Made For Hire. The work made for hire provision of the Law is not mandatory, but vests power in the employer. “In case a copyrighted work is created by a citizen affiliated with an institution, enterprise or organization as part of his duty, the institution, enterprise or organization in question may have priority to using the works.” Article 28.
Transfer of Copyright. Copyrights may – in whole or in part — be “transferred or inherited,” but transfer to a foreign person or entity requires government authorization. Article 21. “Related rights” can also be transferred. Article 33.
If an entity holding a copyright is “dissolved,” the successor entity shall “take over” the copyright. Article 22.
Sub-licenses or sub-assignments may be granted with the permission of the holder of the underlying rights. Article 30.
“Use of Copyrighted Works.” In Chapter 4, titled “Use of Copyrighted Works,” the Law states the various allowed “uses” of copyrighted works.
Article 26, titled “Basic Requirement,” appears to be a listing of the specific sub-rights which constitute a copyright and appears to be a statutory provision analogous to Section 106 of the U.S. Copyright Act. “The use of copyrighted works is an important undertaking of disseminating them by reproduction, performance, broadcast, exhibition, distribution, adaptation and compilation.” Article 26.
Copyrights may be used by the copyright holders or, “with . . . permission,” another person or entity. Article 27. A person or entity “shall use the copyrighted work within the permitted or authorized limit.” Article 29.
Fair Use. The Law specifies instances in which a work may be used without the permission of the copyright holder. These instances include: use “by an individual or within the family”; library, archive, museum or “memorial hall” use; “school education”; for “state management”; use in broadcast or print media “for the purpose of its introduction”; quotations (length not specified); free performances: and Braille uses. Article 32. A work may also be used without permission of the rights holder “when a copyrighted work in public places is copied” – a statutory phrase with unclear meaning. Ibid.
Moral rights. The three moral rights recognized by the Law consist of (1) the right to determine publication, (2) the right to be the publicly acknowledged author, and (3) the right to “keep unchanged the title, content, form, etc., of their works.” Article 14. The use of the word “form” implies a right to prevent the destruction or physical alteration of a work.
“Guidance and Control.” While the majority of the Law is written (or at least translated) into relatively straightforward statutory language, the portion titled “Guidance and Control of Copyright Protection” (Chapter 6) employs diction characteristic of the North Korean regime and of speeches and writings credited to Chairman Kim Jong-Il.
Article 41 reads: “Intensifying guidance and control is the principal guarantee for the correct implementation of the state policy on copyright protection. [¶] The state shall intensify guidance and control of copyright protection.”
Authority for the “guidance” of copyrights is assigned in general terms. “Guidance of copyright protection shall be undertaken by the leading institutions of publication, culture, science and technology under the uniform guidance of the Cabinet.” Article 42.
Infringement. The unspecified “leading institutions” are directed to “exercise strict control so that copyright and the related rights may not be infringed upon.” Article 45. Furthermore, people and entities are prohibited from imitating or pirating the works of others that have been submitted for publication. Article 44.
Infringers may be sued for damages equal to “the resulting losses.” Article 46.
Infringers may also face criminal or administrative sanctions. “Officials of institutions, enterprises and organizations, or individual citizens[,] who are responsible for the serious consequences resulted [sic] from their violation of this Law shall be subject to administrative or penal responsibility.” Article 47.
Copyright disputes are to be mediated and thereafter adjudicated, but the Law does not establish how jurisdiction for any specific dispute is determined. “Any dispute arising in relation to copyright shall be settled by consultation. [¶] In case of failure in consultation, it may be referred to an arbitration body or a court for settlement.” Article 48.
