• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.129-150
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• 2003

Software license agreements, to be useful in the mass market, could not be individually negotiated, and had to be standardized and concise. The software license agreement needs to be presented to the licensee-users in a fashion that would allow for mass distribution of software, also for it to enforceable, that would draw the users' attention to the terms and conditions under which the publisher allowed the use of the software. These needs have been accomplished, with or without fail, through so called the "shrink-wrap licenses" Shrink-wrap licenses purpose to transfer computer softwares to their users by defining the terms and conditions of use of the software without implicating the "first sale doctrine" of the Copyright Act. These shrink-wrap licenses have become essential to the software industry. However, in USA, the law applicable to these licenses has been unclear and unsettled. Courts have struggled to develop a coherent framework governing their enforceability. Meanwhile, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in USA promulgated the Uniform Computer Information Transaction Act ("UCITA") governing contracts for computer information transaction on July 29, 1999. One clear objective of UCITA was to settle the law governing the enforceability of shrink-wrap licenses. In these respects, this paper first introduces the various forms that shrink-wrap licenses take(at Part II. Section 1.), and explains the main advantages of them(at Part II. Section 2.) Here it shows how shrink-wrap licenses value themselves for both software publishers and users, including that shrink-wrap licenses are a valuable contracting tool because they provide vital information and rights to software users and because they permit the contracting flexibility that is essential for today's software products. Next, this paper describes the current legal framework applicable to shrink-wrap licenses in USA(at Part III). Here it shows that in USA the development of case law governing shrink-wrap licenses occurred in two distinct stages. At first stage, judicial hostility toward shrink-wrap licenses marked such that they were not enforced pursuant to Article 2 of the Uniform Commercial Code. At second stage, courts began to recognize the pervasiveness of shrink-wrap licenses, their indispensability to the rapidly expanding information technology industry, and the urgent need to enforce such licenses in order to maintain low prices for consumers of computer hardware or software, resulting in the recognition of shrink-wrap licenses. Finally, in view of the importance of UCITA, this paper examines how it will affect the enforceability of shrink-wrap licenses(at Part IV). The drafters of UCITA, as well as the scholars and practitioners who have criticized it, agree that it validates shrink-wrap licenses, provided certain procedural protections are afforded to purchasers. These procedural protections include the licensee end-user must (i) manifest his assent to the shrink-wrap license, (ii) have an opportunity to review the shrink-wrap license, (iii) have a right to return the product without costs.

• The Journal of Fisheries Business Administration
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• v.33 no.1
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• pp.69-85
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• 2002

Reduction of fishing grounds, which was caused by the recent fisheries agreements between Korea, Japan, and China, Is Increasing the important of coastal fisheries. Korea's coastal fisheries, however, need special management measures owing to the following problems. First, there are too many fishing fleets even though fisheries resources are continuously decreasing. Despite the fact that some of the fishing vessels have been scrapped, there still remain too many vessels and especially approximately 27,000 vessels increased during 1997-1998. Second, as the condition of fisheries resources changed radically, many fishermen are fishing by methods which they were not permitted to. These fishing methods cannot be legally supported and so there is a huge gap between the system and the reality, Third, two or three licenses are given to each coastal fishing vessel because a single license cannot give sufficient income, but some of these are formally acquired. So under such circumstances, efficient management of fisheries is impossible. Fourth, absence of demarcation among regions and industries is causing frequent conflicts and there are concerns about the decreasing fisheries resources due to competitive fishing practices. Therefore, considering the above mentioned problems Korea's coastal fisheries management should be developed as the following: First, new licenses should be limited while expanding the buy-back program. The government is currently planning to limit new licenses by introducing the fixed license number system in coastal fisheries but is somewhat passive about the buy-back program. Second, fisheries management which is based on self-regulation should be established. In order to increase the effect of fisheries management, the fishermen should decide by themselves the fish and fishing methods they would be exploiting and directly regulate them. Third, it is necessary to integrate the licenses of coastal fisheries. Since coastal fisheries management through the license system has distinct limitations, it is preferable to unify risking licenses and let the fishermen decide specific matters on their own. Finally, it is necessary to establish boundaries among the regions and industries. Joint fishing areas among regions(cities and provinces) should be established and fishing in other areas should be permitted on condition of paying the required fees. On the other hand, it is also necessary to permit coastal fishing only within certain distances.

• Journal of Arbitration Studies
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• v.17 no.3
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• pp.145-167
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• 2007

Digital goods are defined as intangible and non-physical goods, composed of a combination of digital signals, electronically represented as 0 and 1. They are also called as digital products, electronic transmissions, information goods, digital contents, computer information, etc. Digital goods are now traded both domestically and internationally as well as on-line and off-line. Korean government revised the Basic Law on Foreign Trade to include digital goods and services as the scope of foreign trade in 2001. Trade volume of digital goods are increasing in Korea. The supply chains of digital goods from producing the components to selling globally to consumers are different from conventional physical goods. Mostly, digital goods are traded on the license basis rather than ownership contract. End User License Agreements(EULAs), such as shrink-wrap, click- wrap, or browser-wrap licenses are very popular in online transactions. Unlike conventional physical goods. the breach of license contract is closely linked with the infringement of intellectual property rights. Digitalized intellectual property is easy to copy and transmit in the cyber space. In cases of legal disputes from the breach of license contract, commercial arbitration or on-line alternative dispute resolutions(ADRs) are regarded as better approach to solve them rather than court sues. For promoting more secure and reliable international trade of digital goods. arbitration clauses should be included in most of license contracts.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.12
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• pp.107-132
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• 1999

The technology transfer agreements, which transfer technology from industrialized countries to developing countries, are subjected to control and restrictions in many developing countries in order to protect national interests. The licensors endeavour, therefore, to ensure that their activities fit satisfactorily into the technological policies and plans of the host countries, and contribute to the development of national scientific and technological potential, including the establishment and improvement in host countries of their capacity to innovate. Secondly, the licensors adopt in the course of their business activities practices which permit the rapid diffusion of technologies with due regard to the protection of industrial and intellectual property rights. Thirdly, the licensors endeavour to grant licenses for the use of industrial property rights or to otherwise transfer technology on reasonable terms and conditions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.73
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• pp.1-20
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• 2017

There are many safeguards and measures available regulating the protection of a trademark and its registered holder, however, the protection of a licensee in a trademark license agreement is also important for protection of a intellectual property. Therefore, there are several measures in place for the protection of licensees' interests in Chinese trademark law. Article 43(3) of the Chinese Trademark Law rules a licensor who licenses others to use his registered trademark shall submit the trademark licensing to the trademark office for file, and the trademark office shall announce the trademark licensing to public. Without filing, the trademark licensing shall not be used against a bona fide third party. It means a licensee can not use an unrecorded license with the relevant trademark authority against third parties - essentially, this means that a licensee should insist on having their trademark license agreements recorded against the relevant trademark authority, so that a licensee's interests are protected as against the assignees, licensees and other types of third parties. Otherwise a third party in good faith can use the registered trademark legally against a licensee even though a trademark license agreement between a licensor and licensee is still valid.

• The Korean Journal of Archival Studies
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• no.49
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• pp.5-49
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• 2016

This study investigates how participatory digital archives should handle user-contributed content in order to legitimately collect from and make available to users according to current copyright laws and related regulations. In doing so, this study surveys the current national and international copyright laws that would apply for digital contents in archives. It also reviews the existing literature that analyzes the understanding and interpretation of regulations and specific infringement cases. Then, it examines the cases of participatory digital archives as to how they deal with the copyright issues to user-contributed content and provide guidance to users in this respect. Based on such analysis, the study suggests a few methods of how digital archives acquire necessary rights for the user-contributed content being housed in archives and how they provide useful guidance to users about their rights and responsibilities. These methods include terms and conditions for contribution/service and essential elements in terms, contributor agreements and their details, and other user guidelines.

• International Journal of Computer Science & Network Security
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• v.22 no.2
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• pp.424-435
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• 2022

When the owners of the intellectual property rights of digital content have lost control over it in the digital environment, there emerged fears that the intellectual property laws, especially copyright law, would not be effective as in the material (Offline ) world. The reason is that the digital environment helps to reproduce copies in high quality and at almost no cost, while copyright law protection has been limited to programs embedded in CDs. According to copyright laws, the owner of the program did not have the right to prevent buyers of the initial physical copy of the program from copying and reselling it to more than one individual without the permission of the original owner. As a result, business owners have invented the idea of licensing digital content and programs instead of selling them. They set out terms that serve their commercial interests regardless of their abuse to intellectual property laws or even the rules of the traditional contract to sell a material property. The abuse has resulted from the way those terms are concluded and the heavy rules that are unfair to consumer rights. Therefore, business owners insisted on dealing with the website and its programs and digital content as material property. Here raises the question of whether the website and its digital content are subject to the protection of copyright law or the rules of the traditional contract or licensing contracts. As the answer to this question affects the protection of consumer rights, is it possible to find a balance between it and the protection of the owners of digital programs' rights.That is what we will discuss in this paper.

• Journal of the Korean Society for Aviation and Aeronautics
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• v.15 no.1
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• pp.38-53
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• 2007

In a seminal judgment of November 2002 (Case C-476/98) relating to the compatibility with Community laws of the 'nationality clause' in the 1996 amending protocol to the 1955 U.S.-German Air Services Agreement, the European Court of Justice(ECJ) decided that the provision constituted a measure of an intrinsically discriminatory nature and was thus contrary to the principle of national treatment established under Art. 52 of the EC Treaty. The Court, rejecting bluntly the German government' submissions relying on public policy grounds(Art. 56, EC Treaty), seemed content to declare and rule that the protocol provision requiring a contracting state party to ensure substantial ownership and effective control by its nationals of its designated airlines had violated the requirement of national treatment reserved for other Community Members under the salient Treaty provision. The German counterclaims against the Commission, although tantalizing not only from the perusal of the judgment but from the perspective of international air law, were nonetheless invariably correct and to the point. For such a clause has been justified to defend the 'fundamental interests of society from a serious threat' that may result from granting operating licenses or necessary technical authorizations to an airline company of a third country. Indeed, the nationality clause has been inserted in most of the liberal bilaterals to allow the parties to enforce their own national laws and regulations governing aviation safety and security. Such a clause is not targeted as a device for discriminating against the nationals of any third State. It simply acts as the minimum legal safeguards against aviation risk empowering a party to take legal control of the designated airlines. Unfortunately, the German call for the review of such a foremost objective and rationale underlying the nationality clause landed on the deaf ears of the Court which appeared quite happy not to take stock of the potential implications and consequences in its absence and of the legality under international law of the 'national treatment' requirement of Community laws. Again, while US law limits foreign shareholders to 24.9% of its airlines, the European Community limits non-EC ownership to 49%, precluding any ownership and effective control by foreign nationals of EC airlines, let alone any foreign takeover and merger. Given this, it appears inconsistent and unreasonable for the EC to demand, $vis-{\grave{a}}-vis$ a non-EC third State, national treatment for all of its Member States. The ECJ's decision was also wrongly premised on the precedence of Community laws over international law, and in particular, international air law. It simply is another form of asserting and enforcing de facto extraterritorial application of Community laws to a non-EC third country. Again, the ruling runs counter to an established rule of international law that a treaty does not, as a matter of principle, create either obligations or rights for a third State. Aside from the legal problems, the 'national treatment' may not be economically justified either, in light of the free-rider problem and resulting externalities or inefficiency. On the strength of international law and economics, therefore, airlines of Community Members other than the designated German and U.S. air carriers are neither eligible for traffic rights, nor entitled to operate between or 'free-ride' on the U.S. and German points. All in all and in all fairness, the European Court's ruling was nothing short of an outright condemnation of established rules and principles of international law and international air law. Nor is the national treatment requirement justified by the economic logic of deregulation or liberalization of aviation markets. Nor has the requirement much to do with fair competition and increased efficiency.