In principle, a copyright
holder in a copyright infringement lawsuit may elect between actual damages and
statutory damages. This election is to be made at any time before judgment is
rendered.
Actual damages can be
based on his own lost profits, defendant’s profits or reasonable royalties. A
copyright holder must prove the exact amount of actual damages by a
preponderance of the evidence.
In practice, it is often
difficult to prove the amount of damage for IP infringement. The statutory
damage is designed to save rightsholders from such difficulties.
Under Article 125-2 of
Korean Copyright Act, a copyright holder may seek statutory damages if the
copyright has been registered with the Copyright Commission. If the copyright
is not registered, the copyright holder may only receive compensatory damages
for actual damage.
The statutory damage is up to 10 million Korean Won (about US$
9,000) per a copyrighted work. In case the infringement is
willful and for the infringer’s commercial interest, the maximum of statutory
damage is increased to 50 million Korean
Won (about US$ 45,000) per a copyrighted work.
Further, with statutory
damages, the court also award cost including attorney fees to the prevailing
party.
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