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Supreme Court of Korea Ruled Music DRM Does Not Violate Competition Law – Abuse of Dominant Market Position in Mobile Phone and Music Download Service

There have been disputes as to whether Digital Rights Management(DRM) does violate competition law.  By using a DRM, the company can tie the playback of certain digital files to its own IT device.  The problem arises when the company has a dominant market position, because it entails an argument from competitors that the company has abused its dominant market position to distort a free competition at the market.

In November last year, the Supreme Court of Korea firstly issued a ruling addressing this issue.  The case dates back to 2006, when Fair Trade Commission(FTC) of South Korea ordered SK Telecom, the largest mobile carrier company and music download service provider, to lift up a DRM which had prevented the purchasers of MP3 mobile phone of SK Telecom from playing MP3 files downloaded from other online music store that SK Telecom does not operate.  SK Telecom had appealed the FTC’s decision to the court.

At the heart of this lawsuit lies the issue of whether SK Telecom’s use of DRM does constitute an abuse of its dominant market position under Korean Competition law.  In this regard, the Monopoly Regulation and Fair Trade Act(MRFTA) of Korea provides that any market dominant enterpriser shall not commit an act of either (i) unreasonably interfering with the business activities of other enterprisers or (ii) unreasonably doing considerable harm to the interests of consumers.  The FTC found SK Telecom’s using a DRM Continue reading


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Can a Game Character Itself be Protected as a Copyrighted Work Separated from Its Original Work As a Whole?

This is an issue arising from an international IP dispute between Konami, a well-known Japanese game production company, and Neople, a Korean game production company.  Back in 2007, Konami alleged that game characters in Neople’s game titled “Shin-Ya-Gu”(New baseball) infringed Konami’s copyright in its famous baseball game “Jikkyou Yaku”(see the picture.  the left image is Konami’s character and the right one is Neople’s) and filed a copyright infringement lawsuit to a Korean court.

The lower courts had overruled Konami’s claim stating a game character itself could not be protected as a copyrighted work under Korean copyright law unless such character had been commercialized independently.

This year, however, the Supreme Court of Korea dissented from the lower courts’ opinion.  The Supreme Court ruled a game character can be copyrighted separated from its original work, a game.  The court held that “In order to be protected under the copyright law, a work must be a creative work expressing human thoughts or emotions. Thus, in case of a character implying shape and name of person, animal and so on appearing in cartoon, television, movie, newspaper, magazine and so on, if the creative personality was shown in the visual expression as to the appearance, action of such person, animal, then such character can be a work as protected under the copyright law, apart from its original work”.  Then the Supreme Court continued to held that  Continue reading


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Court Ruled Starbucks Korea Free to Play Copyrighted Music in Its Outlets without Paying Royalties

eab7b8eba6bc-8A few days ago, Seoul Central Court ruled in favor of Starbucks Korea in a copyright lawsuit filed by the Korea Music Copyright Association alleging the Starbucks Korea should pay royalties in playing copyrighted music in its outlets.  I wrote some posts regarding this issue here and here.  The legal issue was whether playing copyrighted music substitutes a mail business of Starbucks Korea.  That is because Continue reading


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Two Korean Internet Portal Giants Prosecuted for Aiding Copyright Infringement

naverLast December 23, the Seoul Central Prosecutors’ Office prosecuted NHN corporation, the operator of Naver (the largest Internet portal in Korea) and Daum Communications Co., the operatot of Daum for copyright infringement.

The prosecutors said two Internet portals have been aiding copyright infringement of their users by ignoring copyright holders(The Korea Music Copyright Association and the Korea Association of Phonogram Producers) request for removing illegal music files on their sites and taking no actions.  The prosecutors found 10 millions of uploaded music files Continue reading