Constitutional Developments and Intellectual Property Rights: Understanding South Korea from a Confucian Perspective

This paper analyses Confucianism’s role in shaping or hindering different aspects of the law and human rights protection in South Korea. In fact, from a western perspective, it is still challenging to understand the phenomena ranging from constitutional culture and democratic transition to the development of a set of laws for the protection of the rights of creators and owners of inventions, writing, music and more, without exclusively connecting them with the adaption of western institution and practices. Constitutional developments, policies, and the journey towards protecting intellectual property rights are way more complex and internalised than the mere adoption process: geographical, historical, and philosophical contingencies have made these processes differ widely from the western experience. This paper will deal with the correlation between Confucian principles and the late development of intellectual property rights in South Korea, considering what the absence of legal protection has meant for the country. The lack of protection of creative works in East Asia undoubtedly arose from Confucianism, which represented a significant barrier to intellectual property reforms in China and South Korea. Following Confucian principles, copying a scholar’s book was not offensive. On the contrary, it reflected a passion for learning and raising one’s social status. A problem that can be considered consequent to this issue, which was still very relevant at the beginning of the twenty-first century, is widespread offline and online piracy. On this matter, the case of Soribada will be analysed. Soribada is a well-known Korean P2P platform. Courts at different levels held Soribada accountable for violating the copyright law and they addressed the problem of service providers’ responsibility. This case is fundamental because it helped define digital copyright law in Korea after multiple lawsuits and software revisions to comply with the law. Considering that the issue of intellectual property rights protection in Korea emerged simultaneously with the need for democratisation and a series of protests in the country, this work will also focus on the first Patent case in Korea (정인호의 말총모자), which was registered over a century ago and is an interesting case on how the intellectual property indirectly helped the country even back then. In fact, this case is fundamental because it significantly benefited the country’s independence movement at that time.