A big difference between the copyright law of Korea (and probably other continental law countries) and that of the US (and probably other common law countries) is the fixation requirement. Korean copyright law does not require fixation for copyright to arise, while the US law specifically requires fixation under Art. 102 of the Copyright Act.
Article 2(1) of Korean Copyright Act says:
“Works” shall mean a creative production belonging to the category of original literary, scientific or artistic works.
The definition of “works” does not mention fixation. This is probably where confusion starts when Korean copyright lawyers and US copyright lawyers meet and talk about copyright law.
Article 4 illustratively (not exhaustively) lists works of authorship.
(1) The following shall be the examples of works referred to in this Act:
1. Novels, poems, theses, lectures, recitations, plays and other literary works;
2. Musical works;
3. Theatrical works including dramas, dances, pantomimes, etc.;
4. Paintings, calligraphic works, designs, sculptures, crafts, works of applied art, and other artistic works;
5. Architectural works including architectural models and plans;
6. Photographic works including photographs and other works produced by similar methods;
7. Cinematographic works;
8. Maps, charts, design drawings, sketches, models and other diagrammatic works;
9. Computer program works; (2) Matters necessary for the protection of computer program works under Subparagraph 9 of Paragraph (1) shall be provided for in a separate Act.
Article 102 of the US Copyright Act says:
Sec. 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
What can you think of right away when you see this difference? There are a number of literary, scientific, or artisitic activities that are done by authors but that are not fixed in a tangible medium of expression. Examples flourish.
Say, a novelist think of a story and narrate it to public before he writes it down on his note. Nobody was taping or jotting it down.
Say, a composor writes a music in his mind and plays it on piano to public before he writes it down on sheet. Nobody was taping it.
Korean lawyers will immediately say the novelist and composer will have copyright in the novel and music respectively. A US attorney will hardly understand why the novelist and composer have copyright.
This dichotomy in the fixation requirement continues to create confusion. I’m studying how the Berne Convention, Universal Copyright Convention, WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty are dealing with this dichotomy.
(Let me briefly add that UK copyright statute gives an exhaustive (rather than illustrative) list of copyrightable subject matter. This also causes confusion. There are ample reasons why the harmonization of copyright is not easy.)