Article 10.55. Liability of Legal Persons
1. Each Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for the offences referred to in Article10.53.
2. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the criminal offences.
Article 10.56. Aiding and Abetting
The provisions of this Sub-section shall apply to aiding and abetting of the offences referred to in Article 10.53.
Article 10.57. Seizure
In case of an offence referred to in Article 10.53, each Party shall provide that its competent authorities shall have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements predominantly used in the commission of the alleged offence, documentary evidence relevant to the alleged offence and any assets derived from, or obtained directly or indirectly through, the infringing activity.
Article 10.58. Penalties
For the offences referred to in Article 10.53, each Party shall provide for penalties that include sentences of imprisonment and/or monetary fines that are effective, proportionate and dissuasive.
Article 10.59. Confiscation
1. For the offences referred to in Article 10.53, each Party shall provide that its competent authorities shall have the authority to order confiscation and/or destruction of all counterfeit trademark goods or pirated copyright goods, materials and implements predominantly used in the creation of counterfeit trademark goods or pirated copyright goods and the assets derived from, or obtained directly or indirectly through, the infringing activity.
2. Each Party shall ensure that the counterfeit trademark goods and pirated copyright goods that have been confiscated under this Article shall, if not destroyed, be disposed of outside the channels of commerce, under the condition that the goods are not dangerous for the health and security of persons.
3. Each Party shall further ensure that confiscation and destruction under this Article shall occur without compensation of any kind of the defendant.
4. Each Party may provide that its judicial authorities have the authority to order the confiscation of assets the value of which corresponds to that of such assets derived from, or obtained directly or indirectly through, the infringing activity.
Article 10.60. Rights of Third Parties
Each Party shall ensure that the rights of third parties shall be duly protected and guaranteed.
Subsection C. LIABILITY OF ONLINE SERVICE PROVIDERS
Article 10.61. Liability of Online Service Providers (24)
The Parties recognise that the services of intermediaries may be used by third parties for infringing activities. To ensure the free movement of information services and at the same time enforce intellectual property rights in the digital environment, each Party shall provide for the measures set out in Articles 10.62 through 10.65 for intermediary service providers where they are in no way involved with the information transmitted.
Article 10.62. Liability of Online Service Providers: "Mere Conduit"
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, the Parties shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as such storage takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility, in accordance with the Parties' legal systems, of a judicial or administrative authority requiring the service provider to terminate or prevent an infringement.
Article 10.63. Liability of Online Service Providers: "Caching"
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, the Parties shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, on condition that the provider:
(a) does not modify the information;
(b) complies with conditions on access to the information;
(c) complies with rules regarding updating of the information, specified in a manner widely recognised and used by industry;
(d) does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a judicial or an administrative authority has ordered such removal or disablement.
2. This Article shall not affect the possibility, in accordance with the Parties' legal systems, of a judicial or administrative authority requiring the service provider to terminate or prevent an infringement.
Article 10.64. Liability of Online Service Providers: "Hosting"
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, the Parties shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that the provider:
(a) does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) upon obtaining such knowledge or awareness acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility, in accordance with the Parties' legal systems, of a judicial or administrative authority requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility of the Parties establishing procedures governing the removal or disabling of access to information.
Article 10.65. No General Obligation to Monitor
1. The Parties shall not impose a general obligation on providers, when providing the services covered by Articles 10.62 through 10.64, to monitor the information which they transmit or store, nor a general obligation to actively seek facts or circumstances indicating illegal activity.
2. The Parties may establish obligations for information society service providers to promptly inform the competent authorities of alleged illegal activities undertaken or information provided by recipients of their service, or to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
Subsection D. OTHER PROVISIONS
Article 10.66. Border Measures
1. Each Party shall, unless otherwise provided for in this Section, adopt procedures (25) to enable a right holder, who has valid grounds for suspecting that the importation, exportation, re-exportation, customs transit, transhipment, placement under a free zone (26), placement under a suspensive procedure (27) or a bonded warehouse of goods infringing an intellectual property right (28) may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation or the detention of such goods.
2. The Parties shall provide that when the customs authorities, in the course of their actions and before an application has been lodged by a right holder or granted, have sufficient grounds for suspecting that goods infringe an intellectual property right, they may suspend the release of the goods or detain them in order to enable the right holder to submit an application for action in accordance with the paragraph 1.
3. Any rights or obligations established in the implementation of Section 4 of Part III of the TRIPS Agreement concerning the importer shall also be applicable to the exporter or if necessary to the holder (29) of the goods.
Article 10.67. Codes of Conduct
The Parties shall encourage:
(a) the development by trade or professional associations or organisations of codes of conduct aimed at contributing towards the enforcement of intellectual property rights, particularly by recommending the use on optical discs of a code enabling the identification of the origin of their manufacture; and
(b) the submission to the competent authorities of the Parties of draft codes of conduct and of any evaluations of the application of these codes of conduct.
Article 10.68. Cooperation
1. The Parties agree to cooperate with a view to supporting implementation of the commitments and obligations undertaken under this Chapter. Areas of cooperation include, but are not limited to, the following activities:
(a) exchange of information on the legal framework concerning intellectual property rights and relevant rules of protection and enforcement; exchange of experiences on legislative progress;
(b) exchange of experiences on enforcement of intellectual property rights;
(c) exchange of experiences on enforcement at central and sub-central level by customs, police, administrative and judiciary bodies; co- ordination to prevent exports of counterfeit goods, including with other countries;
(d) capacity-building; and
(e) promotion and dissemination of information on intellectual property rights in, infer alia, business circles and civil society; promotion of public awareness of consumers and right holders.
2. Without prejudice and as a complement to paragraph 1, the United Kingdom and Korea agree to establish and maintain an effective dialogue on intellectual property issues (IP Dialogue) to address topics relevant to the protection and enforcement of intellectual property rights covered by this Chapter, and any other relevant issue.
UNDERSTANDING ON FOOTNOTE 14 TO ARTICLE 10.30 OF THE INTELLECTUAL PROPERTY CHAPTER
During discussions on Chapter Ten (Intellectual Property) of this Agreement, the Parties discussed the need for the inclusion of new footnote 14 to Article 10.30 for the purposes of clarification and to preserve the status quo.
The Parties share the understanding that two types of unregistered design right operate alongside one another in the United Kingdom: a national Unregistered Design Right, provided for by Part III, Copyright, Designs and Patents Act 1988 and a Community Unregistered Design right provided for by EU Regulation (EC) No 6/2002 on Community designs.
The Parties agree that Article 10.30 of this Agreement only applies to the European Union's Community unregistered design right as retained in the United Kingdom's law through the European Union (Withdrawal) Act 2018 after the United Kingdom leaves the European Union. The Parties recognise that this is because the Korea-EU FTA only applies to the Community unregistered design right.
Based on this understanding, the Parties agree that footnote 14 provides this clarification.
The United Kingdom confirms that the inclusion of footnote 14 does not affect the conditions under which a design qualifies for protection as a national unregistered design right or a Community unregistered design right as retained in the United Kingdomâs law through the European Union (Withdrawal) Act 2018 (referred to above). Accordingly, the United Kingdom intends that those Korean businesses or persons eligible to use these rights previously will continue to be able to do so after the United Kingdom leaves the European Union.
This Understanding shall constitute an integral part of this Agreement.
Chapter ELEVEN. COMPETITION
Section A. COMPETITION
Article 11.1. Principles
1. The Parties recognise the importance of free and undistorted competition in their trade relations. The Parties undertake to apply their respective competition laws so as to prevent the benefits of the trade liberalisation process in goods, services and establishment from being removed or eliminated by anti-competitive business conduct or anti-competitive transactions.
2. The Parties shall maintain in their respective territories comprehensive competition laws which effectively address restrictive agreements, concerted practices (1) and abuse of dominance by one or more enterprises, and which provide effective control of concentrations between enterprises.
3. The Parties agree that the following activities restricting competition are incompatible with the proper functioning of this Agreement, in so far as they may affect trade between them:
(a) agreements between enterprises, decisions by associations of enterprises and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition in the territory of either Party as a whole or in a substantial part thereof;
(b) any abuse by one or more enterprises of a dominant position in the territory of either Party as a whole or in a substantial part thereof; or
(c) concentrations between enterprises, which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position in the territory of either Party as a whole or in a substantial part thereof.
Article 11.2. Definitions
For the purposes of this Section, competition laws means:
(a) for the United Kingdom, the Competition Act 1998 (c. 41), and Parts 3 and 6 and section 204 of, and Schedules 7, 8, and 10 to, the Enterprise Act 2002 (c.40), and any subordinate legislation made under those provisions, asamended from time to time;
(b) for Korea, the Monopoly Regulation and Fair Trade Act and its implementing regulations and amendments; and
(c) any changes that instruments set out in this Article may undergo after the entry into force of this Agreement.
Article 11.3. Implementation
1. The Parties shall maintain an authority or authorities responsible for, and appropriately equipped for, the implementation of the competition laws set out in Article 11.2.
2. The Parties recognise the importance of applying their respective competition laws in a transparent, timely and non-discriminatory manner, respecting the principles of procedural fairness and rights of defence of the parties concerned.
3. Upon request of a Party, the other Party shall make available to the requesting Party public information concerning its competition law enforcement activities and legislation related to the obligations covered by this Section.
Article 11.4. Public Enterprises and Enterprises Entrusted with Special Rights or Exclusive Rights (2)
1. With respect to public enterprises and enterprises entrusted with special rights or exclusive rights:
(a) neither Party shall adopt or maintain any measure contrary to the principles contained in Article 11.1; and
(b) the Parties shall ensure that such enterprises are subject to the competition laws set out in Article 11.2,
in so far as the application of these principles and competition laws does not obstruct the performance, in law or in fact, of the particular tasks assigned to them.
2. Nothing in paragraph 1 shall be construed to prevent a Party from establishing or maintaining a public enterprise, entrusting enterprises with special or exclusive rights or maintaining such rights.
Article 11.5. State Monopolies
1. Each Party shall adjust state monopolies of a commercial character so as to ensure that no discriminatory measure (3) regarding the conditions under which goods are procured and marketed exists between natural or legal persons of the Parties.
2. Nothing in paragraph 1 shall be construed to prevent a Party from establishing or maintaining a state monopoly.
3. This Article is without prejudice to the rights and obligations set out under Chapter Nine (Government Procurement).
Article 11.6. Cooperation
1. The Parties recognise the importance of cooperation and co-ordination between their respective competition authorities to further enhance effective competition law enforcement and to fulfil the objectives of this Agreement through the promotion of competition and the curtailment of anti-competitive business conduct or anti- competitive transactions.
2. The Parties shall cooperate in relation to their respective enforcement policies and in the enforcement of their respective competition laws, including through enforcement cooperation, notification, consultation and exchange of non-confidential information.
Article 11.7. Consultation
1. A Party shall, on request of the other Party, enter into consultations regarding representations made by the other Party, to foster mutual understanding or to address specific matters that arise under this Section. In its request, the other Party shall indicate, if relevant, how the matter affects trade between the Parties.
2. The Parties shall promptly discuss, at the request of a Party, any questions arising from the interpretation or application of this Section.
3. To facilitate discussion of the matter that is the subject of the consultations, each Party shall endeavour to provide relevant non-confidential information to the other Party.
Article 11.8. Dispute Settlement
Neither Party may have recourse to Chapter Fourteen (Dispute Settlement) for any matter arising under this Section.
Section B. SUBSIDIES
Article 11.9. Principles
The Parties agree to use their best endeavours to remedy or remove through the application of their competition laws or otherwise, distortions of competition caused by subsidies in so far as they affect international trade, and to prevent the occurrence of such situations.
Article 11.10. Definitions of a Subsidy and Specificity
1. A subsidy is a measure which fulfils the conditions set out in Article 1.1 of the SCM Agreement.
2. A subsidy is specific if it falls within the meaning of Article 2 of the SCM Agreement. A subsidy shall be subject to this Section only if it is specific within the meaning of Article 2 of the SCM Agreement.
Article 11.11. Prohibited Subsidies (4) (5)
The following subsidies shall be deemed to be specific under the conditions of Article 2 of the SCM Agreement and shall be prohibited for the purposes of this Agreement in so far as they adversely affect international trade of the Parties (6):
(a) subsidies granted under any legal arrangement whereby a government or any public body is responsible for covering debts or liabilities of certain enterprises within the meaning of Article 2.1 of the SCM Agreement without any limitation, in law or in fact, as to the amount of those debts and liabilities or the duration of such responsibility; and
(b) subsidies (such as loans and guarantees, cash grants, capital injections, provision of assets below market prices or tax exemptions) to insolvent or ailing enterprises, without a credible restructuring plan based on realistic assumptions with a view to ensuring the return of the insolvent or ailing enterprise within a reasonable period of time to long-term viability and without the enterprise significantly contributing itself to the costs of restructuring. This does not prevent the Parties from providing subsidies by way of temporary liquidity support in the form of loan guarantees or loans limited to the amount needed to merely keep an ailing enterprise in business for the time necessary to work out a restructuring or liquidation plan.
This subparagraph does not apply to subsidies granted as compensation for carrying out public service obligations and to the coal industry.
Article 11.12. Transparency
1. Each Party shall ensure transparency in the area of subsidies. To this end, each Party shall report annually to the other Party on the total amount, types and the sectoral distribution of subsidies which are specific and may affect international trade. Reporting should contain information concerning the objective, form, the amount or budget and where possible the recipient of the subsidy granted by a government or any public body.
2. Such report is deemed to have been provided if it is sent to the other Party, or if the relevant information is made available on a publicly accessible Internet website, by 31 December of the subsequent calendar year.
3. Upon request by a Party, the other Party shall provide further information on any subsidy schemes and particular individual cases of subsidy which is specific. The Parties shall exchange this information, taking into account the limitations imposed by the requirements of professional and business secrecy.
Article 11.13. Relation with the WTO Agreement
The provisions in this Section are without prejudice to the rights of a Party in accordance with the relevant provisions of the WTO Agreement to apply trade remedies or to take dispute settlement or other appropriate action against a subsidy granted by the other Party.
Article 11.14. Monitoring and Review
The Parties shall keep under constant review the matters to which reference is made in this Section. Each Party may refer such matters to the Trade Committee. The Parties agree to review progress in implementing this Section every two years after the entry into force of this Agreement, unless both Parties agree otherwise.
Article 11.15. Scope
1. The provisions of Articles 11.9 through 11.14 shall apply to subsidies for goods with the exception of fisheries subsidies, subsidies related to products covered by Annex 1 of the Agreement on Agriculture and other subsidies covered by the Agreement on Agriculture.
2. The Parties shall use their best endeavors to develop rules applicable to subsidies to services, taking into account developments at the multilateral level, and to exchange information upon the request of either Party. The Parties agree to hold the first exchange of views on subsidies to services within three years after the entry into force of this Agreement.
Chapter TWELVE. TRANSPARENCY
Article 12.1. Definitions
For the purposes of this Chapter:
measure of general application means any general or abstract act, procedure, interpretation or other requirement, including non-binding measures. It does not include a ruling that applies to a particular person; and
interested person means any natural or legal person that may be subject to any rights or obligations under measures of general application, within the meaning of Article 12.2.
Article 12.2. Objective and Scope
Recognising the impact which their respective regulatory environment may have on trade between them, the Parties shall pursue an efficient and predictable regulatory environment for economic operators, especially small ones doing business in their territories. The Parties, reaffirming their respective commitments under the WTO Agreement, hereby lay down clarifications and improved arrangements for transparency, consultation and better administration of measures of general application, in so far as these may have an impact on any matter covered by this Agreement.
Article 12.3. Publication
1. Each Party shall ensure that measures of general application that may have an impact on any matter covered by this Agreement:
(a) are readily available to interested persons, in a non-discriminatory manner, via an officially designated medium, and where feasible and possible, electronic means, in such a manner as to enable interested persons and the other Party to become acquainted with them;
(b) provide an explanation of the objective of, and rationale for, such measures; and
(c) allow for sufficient time between publication and entry into force of such measures, taking due account of the requirements of legal certainty, legitimate expectations and proportionality.