An amendment to the Unfair Competition Prevention and Trade Secret Protection Act (“UCPA”) was promulgated on December 7, 2021. The amendment is made to provide protective measures for released and unstructured data, as well as marks exploiting, without authorization, the likeness or identity of public figures. The provision prohibiting the unfair use of data will go into effect on April 20, 2022, and that proscribing the unauthorized use of marks portraying public figures will become effective on June 8, 2022.

▶Protection Against Unfair Use of Data

The use and distribution of high-quality unstructured data has been hindered due to the lack of legal basis of protecting such data. With data being integral to the development and implementation of Fourth Industrial Revolution and Artificial Intelligence technologies, the need to provide a statutory basis for the protection of data has become critical.

Accordingly, the amendment provides the needed protection by stipulating the protected data as: technical or business information that is (a) provided to a specific person or a number of specific persons for business, (b) accumulated and managed considerably by electronic means, and (c) not held as a secret, as defined under Article 2(1) of the Data Industry Promotion and Utilization Promotion Act.

Further, the amendment sets forth the following to be acts of unfair competition:

(i) acquisition of data through theft, deception, unlawful access or other improper means, or use or disclosure of the acquired data by a person without authority to access the data;

(ii) use, disclosure, or provision of data to a third party for the purpose of gaining unfair profits or causing harm to a data holder, by a person who has gained access to the data under a contractual relationship or the like with the data holder;

(iii) acquisition of data, or use or disclosure of the acquired data, with the knowledge that (i) or (ii) was involved; and

(iv) provision, assignment, import, lease export, or manufacture, transmission of technology, service, device or a component(s) of the device mainly for avoiding, eliminating or changing technological protective measures implemented for the protection of data, or display thereof, for assignment or lease, without proper authorization.

An injured party, e.g., the data holder, through a civil action, may seek injunctive relief to stop the unfair use of data and compensation for damages caused thereby. In addition to the civil remedies, anyone who commits the act described in (iv) above is also subject to a criminal sanction, such as imprisonment for a 2 term of up to three (3) years or a fine not exceeding KRW 30,000,000 (approximately US$25,000).

▶Protection Against Unauthorized Use of Marks of Public Figures

With the global success of Korean pop culture across multiple platforms, including BTS (music), Squid Game (television series), and Parasite (film), instances of products and services using the likeness and images of Korean pop culture celebrities without permission are increasing. Under the current Korean laws, however, the level of protection for property rights of celebrities and subsequent damages to consumers has proven to be inadequate.

Addressing this inadequacy, the amendment explicitly stipulates “an act of infringing economic interests of a person by unauthorized use of a mark capable of identifying the person, such as name, portrait, voice or signature and the like, that is widely known in Korea and has economic value, in a manner contrary to fair commercial practices or competition order for the purpose of one’s own business” as an act of unfair competition, allowing the prohibition of the unauthorized use of marks involving celebrities.

The use of marks portraying public figures without permission can be sanctioned through civil remedies including injunctive relief and compensation for damages. However, criminal sanctions are not available against an illegal use of such marks.