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Korea IP Law Blog
Korea intellectual property laws
Resuming blogging here
I thought I needed a place to write on Korean IP laws in English. This blog was a good place to do that. So, I decided to resume writing on this blog.
Notice of moving
Tentatively or permanently, I will post on my new website at http://iplaws.co.kr/
The site has two boards, one in Korean the other in English. Visit either of the boards to your language preference.
KeSPA will eventually negotiate with Gretech
Money Matters
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.
Blizzard chooses Gretech over KeSPa as partner for Starcraft II broadcasting
I was surprised to received an email from Canada a week ago. He asked me to explain whether Blizzard-Gretech deal had legal effect.
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.
- Blizzard tried to negotiate an agreement with KeSPa. (Oh, BTW, KeSPA is Korean eSports Association.) They couldn’t reach a deal.
- 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.
- 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)
- Blizzard has rights in the computer program underneath Starcraft II as a computer program work.
- 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.
Lawrence Lessig visits Korea
[뉴스] 지적재산권 전문가 로렌스 레식 교수, 창작과 나눔 영화제 참석
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.
Book on transactions in intellectual property
Intellectual Property in the Global Marketplace, Vol. 1: Electronic Commerce, Valuation, and Protection, 2nd Edition (Intellectual Property Series) (Volume 1)
Intellectual Property in the Global Marketplace, 2 Volume Set, 2001 Supplement (Intellectual Property-General, Law, Accounting & Finance, Management, Licensing, Special Topics) (v. 2)
Linking to an illegal music found no infringement
http://www.hani.co.kr/arti/society/society_general/394353.html
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.
Hybrid patent system
In the not too far past, the Korean patent system looked very much like that of Japan. Lately, Korea adopted several American patent systems, i.e., the provisional application system in 2008, RCE (being examined in the National Assembly).
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.
WIPO General Assembly week starting next week
WIPO’s 47th General Assembly convenes next week. It will be the first anniversary of Francis Gurry as DG of WIPO. Internally, the biggest agends of WIPO was the Development Agenda and the Committee on Development and IP. Outside of the WIPO, climate change talk was the biggest global issue.
US and Japanese Porn Makers Sue Korean Netizens Again
About a month ago, a group of 50 U.S. and Japanese porn producers sued internet uploaders in Korea. see post.
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.
Will Tamiflu ignite another battle for compulsory license in Korea?
According to an article, the Korean government is short of Tamiflu stock in preparation for the coming fall. Last year, the government is said to have cut its budget for new transmittable diseases by 2.5 billion Won. Out of the 2.5 billion Won, 2.1 billion Won was cut in the Swine Flu item. At a cabinet meeting on August 14, the government assgined 174,8 billion Won budget for purchasing Tamiflu. But the supply of Tamiflu is significantly short of demand, the report says.
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?
Foreign Porn Producers Sue Netizens for Piracy
An interesting news popped up last week. And a more detailed news here.
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.
WTO Panel issues report on US-China dispute over publications and audiovisual products
The WTO issued the report of the panel on US against China – Measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products.
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.
Patent Act and Trademark Act of Korea (amended Jan 30, 2009) uploaded on my wiki
The Patent Act of Korea was amended on January 30, 2009. I have uploaded an English version of the amended Act on the Intellectual Property Laws of Korea wiki.
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.
WIPO and Singapore partner in ADR
WIPO and Singapore jointly announced a communique on ADR partnership.
Jon Dudas is now with Foley and Lardner
I just got curious about Jon Dudas’ whereabout. According to this article and Foley & Lardner’s homepage, he is now with Foley and Lardner as partner.
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.
FTC of Korea Imposes $208 mil on Qualcomm
The Fair Trade Commission of Korea fined $208 million on Qualcomm for abuse of its dominant position in the market. See here for English news.
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).
Request for Compulsory License for Fuzeon Denied
Short Chronicle of the Fuzeon Compulsory License case in Korea
- 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.
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