The site has two boards, one in Korean the other in English.  Visit either of the boards to your language preference.

The key issue of Starcraft II broadcasting rights negotiation is the terms of the deal, which in turn means money.

How much money?

It is said that Blizzard put up several conditions that struck KeSPA as too much.

From what I heard, Blizzard requested:

• fees for each game league (it is not clear whether the fee is for every season or a league or for every new league);
• certain percentage (that is more than usual) of sponsorship, advertisement income and entrance fees;
• KeSPA shall get a permission for each sponorship contract, selection of broadcasting and marketing plan; and
• Blizzard will have the rights in the derivative works made in the course of game league broadcasting.

Was there a Non-Disclosure Agreement?

KeSPA argues that there was no NDA. Blizzard claims to the contrary. I would scratch my head if there were no NDA for the negotiation of such kind.

What are the Terms of the Blizzard-Gretech deal?

There has been no news on the detailed terms of the Blizzard-Gretech deal. I suppose Gretech was granted an exclusive license within Korea to make use of the rights (trademarks and copyrights) in Starcraft / Starcraft II / Warcraft III.

It is said that KeSPA started negotiation with Gretech over the rights to use Starcraft and Starcraft II for gaming league purposes in Korea.

I’m waiting for new to pop up.

I haven’t searched for news articles written in English. If there are any well translated article, I would welcome it.

There are some facts that were revealed in news.

1. Blizzard tried to negotiate an agreement with KeSPa. (Oh, BTW, KeSPA is Korean eSports Association.) They couldn’t reach a deal.
2. Blizzard then struck a deal with Gretech. Gretech makes Gom TV, Gom Player and other multimedia platforms. Gom TV is an internet TV under the Korean Copyright Act, I believe.
3. KeSPA is blaming Blizzard for claiming intellectual property rights on Starcraft Original, Starcraft II and other games.  

Legal aspects of this incident seems clear but unconvincing. Unconvincing because of a Seoul High Court decision in 2007 on the copyrightability of a game character. (will explain more below)

1. Blizzard has rights in the computer program underneath Starcraft II as a computer program work.
2. Blizzard also has rights in the artworks, music and scripts (displayed on the screed or not) of Starcraft II. However, there is a major loophole created by the Seoul High Court decision in 2007.  Let me quote and translate relevant paragraph.

On whether a character is copyrightable independently from the whole game.

On the issue of whether a character that appear in the “Live Baseball” game is copyrightable independently from the game,
Works of art like “Live Baseball” are composed of many elements: characters, plot, scenario, various options, tools, etc. The allegedly copyrightable character is merely an element of the work of art. The character is not considered an independently copyrightable work of art unless the character acquires an independent copyrightability through merchandising of the character.

In addition, Article 2(1) of the Copyright Act defines “work of art” as “creation that expresses human thought or emotion.” The creation means expression itself. A character is an image that are separate from the expression and that are formed in the minds of people. That is, a character is an abstract concept of a personality that are formed from concrete expressions that appear in each scenes, and it is not an expression. Therefore, a character itself is not a creative expression of a thought or emotion.

In conclusion, protecting the game play of “Live Baseball” as visual work of art is sufficient. A character, independently from the game play, is insufficient to be protected as copyrightable work of art.
(Seoul High Court, 2007.8.22., Seon Go. 2006 Na 72392 Pan Gyul)

This case creates a lot of confusion in understanding what to license in when one wants to hold a game competition. 

According to the case, Blizzard has copyright in the game play screen of Starcraft II but does not in the game units (marine, medic, zergling, dragoon, or you name it). 

Anyhow, it can be reasoned that the audio visual screen of the game play is a derivative work of the Starcraft II. That means, game players need to get a permission from Blizzard. Do they need a permission for game play at home? No. Blizzard Starcraft II license agreement covers game play at home.

Suppose game players has permission from Blizzard, what should broadcasting companies do? Broadcasting companies should get a permission from the game players for broadcasting their plays.

These are the legal landscape of the Starcraft II game convnetion.

What does KeSPA have to do with the above picture?

KeSPA is an association of the game teams. Game teams have contracts with game players. Game players’ plays are work for hire. So, the liability belongs to game teams.

Looks complicated, but it’s not so.

Simply speaking, Blizzard has every right to flunk the deal with KeSPA and give exclusive rights to Gretech. If KeSPA goes on with what it has been doing and ignores the Blizzard-Gretech deal, they will meet in court and will probably pay their sorry money.

Interesting thing is that Blizzard is said to have requested too much from KeSPA, terms that it can’t accept.

I can’t list all the leak-outs of the deal here because I haven’t seen them myself.

I thought from the beginning that this is a business deal and has not much to shed further light on the copyright system or IPR laws in Korea.

KeSPA’s argument that it contributed to the success of Starcraft by making the game competition industry as it stands now is a simple BS.

I’d like to draw your attention to the fact that Gretech is an internet TV company and technically it can broadcast to the North America and Europe or anywhere else. I couldn’t get a hold of the license agreement between Blizzard and Gretech, but I’m sure the geographic scope of the license is limited to Korea. But the license agreement can be amended any time. If Blizzard considers that internet TVs are the right platform for game broadcasting, it might consider broadening the license to worldwide and start shooting game plays all around the world.

Prof. Lawrence Lessig visits Korea for the 1st Shared Film Festival.
I tried to find the website of the Shared Film Festival to no avail. It seems the Festival will be opened without a website. Anyway, the Shared Film Festival aims at providing opportunity for creators to promote their works while being free from copyright infringement. (I know this sentence is a bit awkward but all information I could get from the news is only that much.)  I don’t know how a film festival can free movies from copyright infringement, but it seems that the Festival will hold a workshop on copyright.

The Shared Film Festival will be held from June 3 to 9 and June 17 to 21 at CineMaru and Arirang Cine Center in Seoul.

http://www.amazon.com/Intellectual-Property-Global-Marketplace-Vol/dp/0471351083/ref=sr_1_1?ie=UTF8&s=books&qid=1266395792&sr=8-1

Intellectual Property in the Global Marketplace, 2 Volume Set, 2001 Supplement (Intellectual Property-General, Law, Accounting & Finance, Management, Licensing, Special Topics) (v. 2)

http://www.amazon.com/Intellectual-Marketplace-Supplement-Property-General-Accounting/dp/0471390313/ref=sr_1_2?ie=UTF8&s=books&qid=1266395792&sr=8-2

To be brief,

The Supreme Court of Korea ruled that linking to an illegal music was not an infringement, though uploading unauthorized contents was infringement.  Wasn’t there a similar ruling before?  Let me check later.

The American patent system is a unique system that is unlike most other patent systems in the world.

So, the Korean patent system is becoming a hybrid.

An update on the news came up today. A month ago, the porn producers wanted the uploaders to be criminally punished. But the Korean prosecution didn’t indict the uploaders because their internal guidelines for indicting online copyright infringers require more than 3 times of infringement. Since most of the uploaders were sued for the first time for porn uploading, they were not indicted.

The porn makers are sueing select uploaders who meet the prosecution’s guideleines this time. If the selected uploaders do meet the prosecution’s guidelines, the prosecution will be pressured to indict the uploaders.

For those who are not familiar with the relationship between civil suit and criminal indictment in Korea, certain laws require civil suit before the prosecution makes an indictment. Intellectual property laws are notable examples. So, the porn producers have to file civil suits before requesting the prosecution to make indictments.

The porn producers are said to be considering other measures to suppress porn uploading. They are taking steps to have the uploaders indicted for other criminal charged, i.e., distribution of sexually offensive materials, and violation of the child and youth protection law.

The minister of health uttered ‘compulsory license,’ and it ignited a debate on compulsory license of Tamiflu. Will the debate actually cause a procedure be instated for determining compulsory license?

I kinda doubt the ability of the current government in understanding the subtle inconsistency in facing the issue. We saw a rejection of the request for compulsory license on AIDS vaccine about a month ago. Now if we see the minister of health request for compulsory license on Tamiflu? One might say Tamiflu is not an AIDS vaccine. Is it? or is it not?

A group of 50 U.S. and Japanese pornography producers have filed a lawsuit against South Korean Internet users for illegally uploading their content on the Internet for commercial purposes.

That happens. Nobody would be surprised to know that there are people who upload porns. The number is quite impressive. 50 foreign porn producers sued 10,000 heavy uploaders. 10,000 that is! That is 1 out of 2,000 adult male in Korea. Now it seems a little convincing.

It is reported that they plan to take legal action against about 80 file-sharing web sites for aiding abetting.

A more interesting (from the legal perspective) news follows. I couldn’t find a link to an English news. But Korean news is here.

The police, after receiving the accusal, considered the case (quite seriously because they might have to investigate 1,000 people) and dismissed the case. The reason being, the pornos at issue are not protectible copyrightable matter because they do not have any academic or artistic value and distribution of porno is illegal in Korea.

Sounds familiar?

First, the Copyrgith Act of Korea abolished the requirement of being academic or artistic in order for a work to be copyrightable. When? On December 28, 2006, when the Coyright Act of Korea was totally amended. Article 2(1) (definition) defines “copyrightable work” as a work of creation that expresses human idea or emotion. Before the amendment, the definition has a modifier like “that belongs to literature, academia or art.” After the amendment, a work of creation need not belong to literature, academic or art. The police is wrong.

Second, we saw this argument in the US-China dispute settlement case before the WTO on Enforcement of IPR. One of the interpretation of TRIPS by the Panel is that a work is copyrightable even if it contains illegal contents. The police didn’t know they were wrong at first. But after a couple of days, they figured out that if they didn’t honor the copyright of porns, they might violate duties under international treaties, like the Berne Convention.

We will see as the case unfolds.

The report number is DS363.

It’s worth reading. Note that the case is not based on TRIPS, but on GATT and GATS.

For the report, see here.

Also, the Trademark Act of Korea (last amended on December 26, 2008) was also uploaded on the wiki.

Other Acts like the Trademark Act, Industrial Design Protection Act, Utility Model Act will be uploaded in the matter of weeks.

For those who don’t know who he is, he is a former Under Secretary of Commerce for Intellectual Property and Director of the USPTO.

I have a photo taken with him in 2007.

Count one is royalty differentiation based on whether a licensee uses Qualcomm chips or its competitor’s chips.

Count two is Qualcomm’s rebate payment to purchasers in exchange for bulk purchase of CDMA modem chips and RF chips from Qualcomm. (eg. if the purchaser buys more than 85% of the modem chips he needs, Qualcomm pays 3% of the purchase price as rebate.)

Count three is unfair licensing condition that forces royalty payment after the licensed patent has expired. (personally, I don’t understand exactly how this can happen.)

A news in Korean is here.

Below is a press release by the FTC Korea (written in Korean).

퀄컴, 모뎀칩 시장 독점력 남용 사상최대 과징금 2,600억
공정거래위원회는 23일 미국 퀄컴 인코포레이티드(이하 퀄컴)의 로열티 차별, 조건부리베이트 등의 시장지배적지위남용행위에 대해 시정명령과 함께 약 2,600억원의 과징금을 부과하기로 결정했다.

퀄컴은 CDMA 원천 기술을 보유하고 국내 CDMA 모뎀칩 시장의 99.4%(2008년 기준)를 차지하고 있는 확고한 독점적 사업자다. CDMA 이동통신 기술을 휴대폰 제조사에게 라이선싱 하면서 경쟁사의 모뎀칩을 사용하면 차별적으로 높은 로열티를 부과했다.

예를 들어, 퀄컴 모뎀칩을 사용하면 5%, 다른 회사의 모뎀칩을 사용하면 5.75%의 로열티를 차별적으로 적용했다.

또한 휴대폰 제조사에게 CDMA 모뎀칩과 RF칩을 판매하면서 수요량의 대부분을 자신으로부터 구매하는 조건으로 리베이트를 제공했다. 예를 들어 한 회사가 모뎀칩 수요의 85% 이상을 퀄컴으로부터 구매하면 구매액의 3%를 지급했다.

CDMA 이동통신 기술을 휴대폰 제조사에게 라이선싱 하면서 대상 특허권이 소멸하거나 효력이 없게 된 이후에도 종전 기술로열티의 50%를 계속 받을 수 있도록 약정했다.

퀄컴의 로열티 차별 부과와 조건부 리베이트 지급에 의해 실제로 VIA(대만), EoNex(한국) 등 퀄컴의 경쟁사업자의 국내 모뎀칩 시장 진출이 제한됐다. 그 결과 퀄컴은 10년 넘게 독점에 가까운 시장점유율을 유지할 수 있었다.

퀄컴의 국내 CDMA 모뎀칩 점유율은 2002년 이후 현재까지 98%이상으로 유지되어 왔다. 2004년, 2005년중 VIA, EoNex 등이 LG, 삼성 등에 공급을 일부 추진했으나 의미있는 시장점유율 확보에 실패했다.

모뎀칩은 사람의 음성을 디지털 신호로 변조하고 디지털신호를 사람이 들을 수 있는 아날로그 신호로 변조하는 휴대폰의 핵심장치(컴퓨터의 CPU에 해당)이다.

RF(Radio Frequency)칩은 기지국으로부터 전파를 수신하고 수신한 고주파를 모뎀에서 처리 가능한 저주파 대역으로 변조시키거나 반대로 기지국 송신을 위해 저주파를 고주파로 변조, 통신하는 장치이다.

공정위는 퀄컴사의 독점력 남용 행위에 대해 과징금 약 2,600억원(관련 매출액 최종 확인 후 확정)을 부과했다.

이는 공정위 부과 과징금 사상 최대 금액으로서 이번 사건 전에는 KT의 시내전화 공동행위 건(2005년)에서 1,130억원이 최대 금액이었다.

또한 공정위는 경쟁사의 모뎀칩을 사용하는 경우에 차별적으로 높은 로열티를 부과하는 행위를 금지하고 CDMA 모뎀칩/RF칩을 판매하면서 경쟁사업자를 배제하는 수준의 자사모뎀칩/RF칩 구매를 조건으로 리베이트를 지급하는 행위를 금지했다.

이는 부당하게 기술료를 차별적으로 부과하거나 조건부 리베이트를 지급하는 행위를 금지하는 것일 뿐, 차별 없는 기술로열티 할인이나 경쟁자 배제효과가 없는 모뎀칩 가격할인 등을 막는 것은 아니다.

부당하게 특허기간이 소멸하거나 효력이 없어진 이후에도 기술로열티를 계속 받을 수 있도록 하는 행위를 금지했다.

퀄컴은 차별적 로열티 부과로 ‘다른 사업자의 사업활동을 부당하게 방해하는 행위’(공정거래법 제3조의2 제1항 제3호)와 ‘부당하게 거래의 상대방을 차별해 취급하는 행위’(공정거래법 제23조 제1항 제1호)에 해당된다.

또한 조건부 리베이트를 제공해 ‘부당하게 경쟁사업자를 배제하기 위해 거래한 행위’(공정거래법 제3조의2 제1항 제5호 전단)에, 특허권 소멸 후 로열티를 부과해 ‘자기의 거래상 지위를 부당하게 이용해 상대방과 거래하는 행위’(공정거래법 제23조 제1항 제4호)에 속한다.

이 사건은 최첨단 산업분야로서 사건내용이 복잡·방대할 뿐만 아니라 고도의 경제분석과 법리검토가 필요해 약 3년이 넘는 기간동안 조사를 거쳐 올해 2월17일 심사보고서를 전원회의에 상정됐다.

심사보고서에 대한 퀄컴의 의견제출 기회를 부여한 후 5월 27일부터 7월 15까지 총 6차례의 전원회의를 개최했다.

퀄컴은 물론 신고인 등에게도 진술기회를 부여함으로써 절차적 공정성을 최대한 확보했다. 또한 위법성 입증을 위해 국내외 많은 전문가들의 의견서를 제출받아 반영했으며, 쟁점사항에 대해서는 전원회의에서 전문가들의 증언을 직접 청취했다.

이번 사건으로 국내 모뎀칩/RF칩 시장에서 퀄컴의 행위에 의해 봉쇄됐던 신규사업자의 진입이 촉진되어 상품이 다양해지고 가격경쟁이 더해질 것으로 기대된다. 휴대폰제조사는 구입단가 인하와 부품 선택의 다양성 확대로 세계시장 변화에 대처하는 능력이 향상될 것으로 기대된다. 국내 휴대폰 소비자들도 부품 시장에서의 경쟁이 촉진될 경우 휴대폰 가격, 제품선택의 다양성 측면에서 혜택이 기대된다.

이번 시정조치는 2006년 MS건, 2008년 인텔건에 이어 국내 시장에서 활동하는 거대 다국적 기업의 경쟁제한행위에 대해서도 예외 없이 엄정한 법집행을 하겠다는 공정위의 기본원칙을 다시 한번 확인했다는데 의의가 있다.

휴대폰에서 동영상을 저장, 재생하는 모바일 소프트웨어 시장에서 경쟁자를 배제하는 혐의에 대해서는 추가 심사 중이며 판단이 완료되는 대로 발표 할 예정이다.

• 2008. 12. 23: Request for Compulsory License Received by KIPO
• 2009. 6. 8: Decision on the Request for Compulsory License Made

The Korean Intellectual Property Office (KIPO) made a decision on the request for compulsory license on Fuzeon, a drug for HIV.

Conclusion: Request for compulsory license for Fuzeon is denied.

Rationale:

(1) The reason why Fuzeon was not distributed in Korea was that the negotiation between the Ministry of Health and Roche over the price of the drug failed. This fact alone is not enough ground for granting a compulsory license because, if we do otherwise, the essential scheme of the patent system might be undermined.

(2) The possibility of achieving the goal of a compulsory license should also be considered. The petitioners failed to submit how they will produce the drug once they were granted the compulsory license, for example whether they will directly produce the drugs, outcontract the production or import them. Therefore, the petitioners failed to show that they could provide Fuzeon to HIV patients, which is the goal of the requested compulsory license.

(3) According to the pharmaceutical industry, other drugs for treating HIV are being developed in Korea or abroad.

(4) The respondant (Roche) began providing Fuzeon for HIV patient for free under its Compassionate Program. This Program resolved the access to Fuzeon issue and the urgency of granting the compulsory license has significantly been reduced.

Above is my rough translation of the decision.

Below is my thought.

I think Number (4) is the strongest reason for not granting the compulsory license. Other reasons are not very convincing.

Number (1) is an abstract statement that does not help enlighten this foggy area of compulsory license.

Number (2) is a novel criteria. Nowhere in the Patent Act of Korea or its implementing decree or ordinance is the ‘possibility of achieving the goal’ provided. I am not sure if the petitioner must show that a certain pharmaceutial company which has necessary production facilities has agreed to produce the drugs once the compulsory licnese is granted. Would it be enough if the petitioner shows that he will contract out for the production of the drugs?

Number (3) is not very convincing. The time for completing FDA process is usually 5 years or more. The decision says other companies ARE developing, meaning they haven’t even completed a drug. Let’s say they make a drug that is claimed to be effective in a year, FDA’s clock will only start ticking then. During the more than 1 plus 5 years period, patients are left with only Fuzeon.

There haven’t been a lot of requests for compulsory license in Korea. There haven’t been an established set of criteria for granting a compulsory license. I had a hard time finding old decisions on compulsory license. Maybe this case will help a little for future requests.

—————————-

Facts of the case are as follows:

Patents at issue
(1) KIPO Reg. No. 10-0355407-0000 – Synthetic Petide Inhibitors of HIV Transmission
PCT Pub. No. WO 1994/28920 (1994.12.22)
Priority No. US09/045,920 (1998.3.23), US09/071877 (1998.5.1)

Assignee: Trimeris, Inc.
Inventors: KANG, Myung-Chol, BRAY, Brian, LICHTY, Maynard, MADER, Catherine, MERUTKA, Gene

Abstract (on the PCT application)

The present invention relates to peptides which exhibit potent anti-retroviral activity. The peptides of the invention comprise DP-178 (SEQ ID:1) peptide corresponding to amino acids 638 to 673 of the HIV-1LAI gp41 protein, and fragments, analogs and homologs of DP-178. The invention further relates to the uses of such peptides as inhibitory of human and non-human retroviral, especially HIV, transmission to uninfected cells.

(2) KIPO Reg. No. 633214 – Methods and Compositions for Peptide Synthesis
PCT Pub. No. 1999/48513 (1999.9.30)
Priority No. US09/045920 (1998.3.23), US09/071,877 (1998.5.1)

Assignee: Trimeris, Inc.
Inventors: KANG, Myung-Chol, BRAY, Brian, LICHTY, Maynard, MADER, Catherine, MERUTKA, Gene

Abstract (on the PCT application)

The present invention relates, first, to methods for the synthesis of peptides, in particular T-20 (also referred to as “DP-178″; SEQ ID NO:1) and T-20-like peptides. Such methods utilize solid and liquid phase synthesis procedures to synthesize and combine groups of specific peptide fragments to yield the peptide of interest. The present invention further relates to individual peptide fragments which act as intermediates in the synthesis of the peptides of interest (e.g., T-20). The present invention still further relates to groups of such peptide intermediate fragments which can be utilized together to produce full length T-20 and T-20-like peptides.