Judicial Lawmaking and the Influence of Comparative Law
Edited by John O. Haley and Toshiko Takenaka
Chapter 5.2: Ethics rather than rights: Reconsidering “transmit rather than create” – Toward a new understanding of Korea’s intellectual property rights tradition
From a Western perspective, Korea, similar to China, has been thought to inadequately protect intellectual property, and there has been ongoing friction regarding intellectual property trade relations. For a considerable time, Korea was annually listed on the United States Trade Representative (USTR)’s Special 301 Report on Intellectual Property Rights Watch List or Priority Watch List. During the negotiation of the Korea–US Free Trade Agreement (KORUS FTA), which was ratified by the Congress of the United States on October 12, 2011, and by the National Assembly of Korea on November 22, 2011, there was substantial disagreement regarding the scope of protection that should be afforded to intellectual property rights. Professor William P. Alford of Harvard Law School examined the low level of protection afforded to intellectual property rights in China and Taiwan, finding the cause in the countries’ common Confucian background. Alford’s study, which has been considered a potent theory on the topic, argues that China’s traditional focus on the interaction with past orthodoxy rather than originality led to a belief that knowledge should be held communally and thus was the reason an intellectual property system did not develop. A Western scholar’s assessment from a Confucian perspective is original and quite convincing. Because Korean culture is similarly deeply rooted in Confucianism, Alford’s theory may be applied to Korea as well. However, as 20 years have passed since the publication of Alford’s theory, it is questionable whether the Western view of intellectual property rights in the Eastern world is correct as applied to Korea.
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