Fair use doctrine in China : a suggestion on the modification of a fair use clause

Jin, Li-Feng 忠南大學校 大學院 2016 국내박사

ITER 국제 핵융합 에너지 기구의 설립에 대한 협정상의 지재권 조항에 대한 연구

한치현 충남대학교 특허법무대학원 2014 국내석사

This paper aims to finally research the problems and improvement of existing related Intellectual Property Right regulations of ITER, which is International Thermonuclear Experimental Reactor as a international joint R&D Project, through understanding and interpretation of such as those regulations of ITER’s IPR. As international joint R&D projects make up on an part of Korea’s national R&Ds, after first of all looking into the legislative system of our National R&D Programs and also search the legislative system of main other country : the U.S., Japan, EU. This paper will examine comparative consideration by the specific issues of international joint R&D Projects and our patent laws. On the basis of such background knowledge, this paper will investigate the issues and problems while drafting ITER’s IPR regulations in the negotiation process, And finally to try out the problems and improvement of existing ITER’s IPR through study and analysis about the regulations by the issues of the ownership, utilization and protection of the international R&D results. Also this paper will stress the need for a follow-up study of ITER’s IPR in order to fulfill the ITER Project successfully and then such as the systematic study and substantial improvement of ITER’s IPR will have to contribute to achieve the purpose of ITER Project.

천연물 신약개발과 특허권의 역할

신숙영 忠南大學校 大學院 2014 국내석사

The purpose of this study is exploring pharmaceutical industry at home and abroad, reviewing the appropriateness of natural substance new drug development and studying the role of intellectual property right. Since new drug development requires huge investment and long time, the protection of intellectual property right is utilized as more important means in collecting invested research and development cost in pharmaceutical industry than in other industries. Therefore, the patent management in a pharmaceutical company is more important than in companies in other industries. In order for new drug development to succeed in high added value industry with high technology intensity, it is necessary to establish a strategy on intellectual property right from the development step. Accordingly, this study explored the intellectual property right related to natural substance new drug and studied how the domestic laws related to international treaties should be applied on this matter. As study method, the natural substance new drug development status and related existing study literatures were identified and analyzed by literature search. In addition, the issues in the application of patent law on the development of natural substance new drug were identified by learning existing patent right related regulations, introduction status of international treaties to Korea and the preparation status in Korea for international treaties. As last, an improvement plan is suggested in this regard. The conclusion suggested by this study is as following. The main stream of domestic new drug development is generic medicines and improved medicines. However, if we are to overcome the limitations in investment and human resources and have competitiveness in global market, development of natural substance new drug utilizing traditional medicines based on rich clinical experience accumulated for a long time would be more competitive. The entry barrier to natural substance new drug development in Korea was lowered when the Natural Substance New Drug Research and Development Act was legislated in the early 2000s for the improvement of poor investment environment; however, there is the issue that the process after entry is not getting support because the act was not modified since its legislation. In addition, there is no legal device for domestic pharmaceutical industry to cope with the Convention on Biological Diversity, which is acknowledged as a crisis. Therefore, modification of Natural Substance New Drug Research and Development Act is necessary so that new drug development would be successful enabling investment cost collection after market entry. When natural substance new drug development is successful, it can create high added value; therefore, patent right is very important. The role of patent right for Korean natural substance new drug to enter global market is as following. First is the decrease of exploration cost. There are many ongoing studies which investigate and organize native plants and generic resources in Korea since Nagoya Protocol. If this would be utilized in the exploration study step of natural substance new drug development, which is most costly both in time and money, substantial amount of time and money can be saved compared to existing studies. At present, there is no legal basis enabling easy utilization of native plants and generic resources being studied; therefore, preparation of legal basis for the utilization of it in the development of natural substance new drug is required. Second, the disclosure requirement of biological genetic resource as patentability should be enforced. It is already enforced as a law in overseas resource-rich countries and PCT is preparing to make it as an essential requirement for patent; therefore, we should also define the patent requirement as a domestic law so that our patent right would be secured in global market. Third, Data exclusivity right should be defined in a law. Data exclusivity right is intellectual property right in a wider meaning because it gives exclusive right to a new drug developer by prohibiting others quoting the test data submitted by new drug developer for permit for certain period. Since natural substance new drug utilizes traditional knowledge, it is not possible to protect the information by patent right in many cases; therefore, data exclusivity right can be utilized as a medicine intellectual property right system encouraging new drug development. At present in Korea, new drug re-examination system is doing the role; however, it has the issue that it is not helpful in the advance of medicine market because the law is not clear and the purpose of law is different. Therefore, legislation of this matter as a separate law from existing new drug re-examination system is required.

결합상표의 유사여부 판단에 관한 연구

정희경 忠南大學校 特許法務大學院 2014 국내석사

Fair Use Doctrine in China: A Suggestion on the Modification of a Fair Use Clause

김리봉 忠南大學校 大學院 2016 국내박사

부정경쟁방지법 제2조제1호차목의 해석론 및 개선 방안 연구

조상흠 충남대학교 특허법무대학원 2022 국내석사

The Article 2. 1. (j) of the Unfair Competition Prevention and Trade Secret Protection Act was introduced by the amendment on 17 April 2018. ​It explicitly prohibits the unfair competition activity so-called ‘idea misappropriation’ or ‘technology misappropriation’ which has been pointed out as a serious problem of the Korean economy by preventing the growth of innovative SMEs and startups. Because it is the first legislation directly governing the protection of ‘idea’, it is required to provide concrete interpretations of the provision to minimize the legal uncertainties of the stakeholders. However, the precedents have not yet been accumulated and even academic discussions have not been sufficient. Therefore, this thesis proposes the detailed interpretation of the elements of the new regulation, the Article 2. 1. (j). When interpreting this new regulation, it is important to consider the legislative purpose of this regulation and Unfair Competition Prevention and Trade Secret Protection Act : to establish a sound transaction order and to prevent free-riding on the efforts of others. It should also be considered that the Article 2. 1. (j) was legislated to cover the blind spots of existing laws in preventing idea misappropriation. Therefore, it is not desirable to interpret the requirements of the Article 2. 1. (j) too strictly. However, it is also essential to strike the right balance among stakeholders not to restrict the normal spread of ideas or affect normal negotiations and transactions. Harmonization with the existing legal framework such as patent and trade secrets should also be taken into account. As legislation was promoted quickly, some important issues such as distribution of the burden of proof and appropriate protection period were not discussed in depth. This thesis propose to make an amendment to the Article 2. 1. (j) to partially shift the burden of proof, to limit the period of protection, to strengthen the effectiveness of administrative relief, and to improve the clarity of the languages of the Article 2. 1. (j).

「나고야의정서」 발효에 따른 법적·제도적 보완방안 연구

김연경 충남대학교 특허법무대학원 2013 국내석사

Nagoya Protocol on Access to Genetic Resource and the Fairand Equitable Sharing of Benefits Arising from their utilization to the Convention on Biological Diversity (CBD) (herein after referred as to "the Protocol") was adopted at the tenth meeting of Conference of the Parties to the CBD on 29 October 2010 in Nagoya, Japan. Adopting the Protocol and taking into effecting within a few upcoming years, the many countries which signed on the Protocol and the countries not singed but which would be affected by the Protocol would have face with to prepare legal and institutional framework considering both positive and negative features by the Protocol within the international regime of access and benefit sharing (ABS) based on genetic resources. The Protocol is structured into 27 preambular paragraphs, 36 articles, and one annex, and this study examines and summaries the core provisions of the Protocol. The core and controversial issues have been drawn as follows: 'access requirements', 'benefit sharing', 'utilization of genetic resources and range of utilization', 'indigenous and local communities and traditional knowledge', 'temporal scope', 'compliance', 'monitoring' and so on. The Protocol, itself, has several achievements such as instituting how to approach the genetic resources from other countries and how to share the benefits utilizing from those resources. However, the Protocol still has several drawbacks such as its ambiguous expression in central provisions or no clarifications where it is essentially needed. Adopting the Protocol, the rich countries in terms of genetic resources, which are usually developing countries, are likely to enforce their legal system to manage genetic resources nationally and internationally according to the requirements of the Protocol. In other hand, the poor countries in terms of natural resources but having cutting-edge technology to utilize the resources would prepare how to cooperate resources-rich countries in legal and political manners. The study would first provide the analysis of the Protocol and the current status of legal framework in various countries grouped into two; resources-rich and not rich. The rich countries in terms of genetic or natural resources are China, Australia, India, Brazil and Norway, otherwise the resources-user countries are Japan, Canada and USA representatively. Those countries are the Parties of CBD except USA and they have their own national regulation coping with ABS international regime. As the next step, the study would explore the current legal system of Korea as regard to the Protocol and the CBD. The Korean Government has recently legislated the Law on the Conservation and Utilization on the Biodiversity and will enforce the Law in February 2013, and the study would examine this Law in detail with a view of distinctions with existing laws and regulations in Korea. Lastly, this study would provide the legal and institutional framework and approaches which could be considered to maximize the effects of the Law on the Conservation and Utilization on the Biodiversity. 2010년 10월에 개최된 생물다양성협약 제10차 당사국총회에서 생물유전자원의 접근 및 이익공유(ABS: Access and Benefit-Sharing)에 관한 「나고야의정서」가 채택되었다. 「나고야의정서」의 채택으로 생물유전자원의 확보 및 이용을 위한 정부, 기업, 연구기관 차원의 대책 마련이 시급한 과제로 대두되었다. 「나고야의정서」는 생물유전자원 이용에서 발생하는 이익을 자원 제공국과 공유하도록 규정하는 국제규범으로 10년에 걸친 국제협상의 성과물이라 볼 수 있으며, 의정서에는 주로 생물유전자원 이용국인 선진국의 입장이 상대적으로 많이 반영되었다 볼 수 있으며, 특히 총회 개최국인 일본은 개도국에 대한 적극적인 재정지원을 제안하여 의정서 합의를 도출하는데 일정 기여를 하였다고 평가되고 있다. 「나고야의정서」의 핵심 쟁점은 의정서의 적용범위, 이익공유, 접근절차, 준수확보 등의 사항이다. 적용범위라 함은, 의정서 발효 이후에 획득된 유전자원을 대상으로 한다는 것과 파생물(derivative)은 포함시키지 않기로 한 것을 말한다. 이익공유는 선진국 주장대로 개별 계약을 통해 이루어지도록 하였으나, 다만 계약이 성실히 이행되도록 국내법적 조치를 취하도록 하고 있다. 접근절차에서는 개도국의 투명한 접근절차 정비가 요구되고 있으며 이 또한 선진국에게 유리한 효과를 줄 것으로 기대되고 있다. 마지막으로 의정서의 성실한 준수를 위하여 가입국가는 1개 이상의 감시기관(checkpoint)를 설치하도록 규정하고 있다. 「나고야의정서」의 채택으로 생물자원부국으로 여겨지는 개도국의 협상력이 증가할 것으로 예상되며, 생물유전자원 해외의존도가 높은 우리나라는 이에 대한 대비가 필요한 실정이다. 또한 현재 채택된 의정서가 여전히 불분명한 부분이 남아 있어 향후 추가적인 협상이 예상되므로 이에 대한 대비도 필요하다 보여진다. 또한 「나고야의정서」가 요구하는 사항을 이행하기 위한 국내 대응책 마련에도 관심을 기울여야 한다. 「나고야의정서」의 이행은 어느 한 부처가 완수할 수 있는 사항이 아닌 그 범위가 방대하고 또한 생명공학 및 보건산업 등 국가 미래성장동력과 직결되기 때문에 정부의 신중한 접근 및 면밀한 대책이 요구되고 있다. 이에 본 연구에서는 「나고야의정서」발효에 따른 우리나라의 효율적인 국가 대응 및 운영 시스템 구축을 마련하기 위하여, 「나고야의정서」의 채택배경 및 과정을 검토하고 특히 국가별로 생물유전자원의 접근 및 이익공유(ABS) 문제에 대한 대응 정책 및 제도를 살펴볼 것이다. 이를 바탕으로 우리나라가 「나고야의정서」발효에 따른 법적, 제도적 국가적 대응 방향이 현재까지 어느 단계까지 진행되어 왔는지 비교해 보고, 향후 우리나라가 취할 수 있는 법적, 제도적 발전적 방향에 대해 모색해 보고자 한다.

미·한·중 퍼블리시티권에 관한 비교연구

김려매 忠南大學校 大學院 2011 국내석사

The publicity right is a right to regulate using an individual's identity commercially without the individual's permission. comparing to the preexisting privacy right which passively protects one's name or portrait not to open to the public, the publicity right is an active right to open or use one's name or portrait commercially. The publicity right differs from the privacy right in causing property damage when infringed. Recently, by rapid development of popular entertainment and mass media, there have been many cases over the use of name or likeness of famous persons for commercial purposes. The korean civil law, the copyright law and the unfair competition law may apply to the infringement of the right of publicity. Since we do not have specific law for the protection of publicity rights in Korea. Therefore the right of publicity must be legislated as soon as possible to prevent disputes over this right. But there are so much different in Korean and US Legal Systems that it is not advisable to adopt exactly same provisions of US law into the Korean law. And then an enactment of the law will prove to be a serious problem maker, if it aims at an exact replica of other country's law which is quite different from the Korean Legal System. So the harmonization with Korean law is required to achieve in legislation of publicity law. In this thesis, First, was analyzed process of the right of publicity at lower court and existing law and it's amendments to the introduction plan of the right of publicity. And then, was reviewing how the right of publicity is handled, about infringement case of China's right of publicity. Finally, in the case of the occurrence of infringement, was reviewing how to make application of the civil law, the copyright law and the unfair competition law. In conclusion, I will present concrete alternatives for the effectiveness of the right of publicity.

特許法條約 締結에 따른 特許法 硏究

장정수 忠南大學校 特許法務大學院 2011 국내석사

퍼블리시티권 도입의 필요성에 관한 연구

임보현 충남대학교 특허법무대학원 2010 국내석사

According to increasing the Korean celebrities' reputation and population in other counties which called "Korean Wave", they are getting influential and competitive recently. However, those celebrities are not able to deserve to get profit from their popularity abroad, because there is no regulation to protect their identities such as name, portrait, voice, signature, and so on. There is the preexisting right of portrait to protect individual's portrait or name passively not to open or use those commercially. It is different from the right of publicity which is causing property damage when infringed. There are only adequate recompense according to the right of portrait. In United States, the right of publicity was introduced at the first time to protect being used celebrities' name or portrait without permission. Many states in the U. S accepted the right of publicity as a written law. In Korea, there are many cases and disputes on infringing individual's identity recently and the need to protect it is increasing. However, because there is no written law in Korea, many cases had different results. In the mean time, the academical discussions on the right of publicity are meager yet here. In conclusion, I assume that the right of publicity can be introduced to Korean law and the right of publicity has already been a commercial practice by paying and contracting for commercial use of individual's identity. To affirm introducing the right of publicity, the negotiation and the inheritance could matter regarding the possibility of transference, therefore I also affirm the negotiation, taking a serious view on the property right of publicity, and the inheritance, preventing taking excessive profits using a famous individual's reputation after their death. When we accept the right of publicity, there must be not only benefit but also responsibility so we have to consider both carefully to introduce the right of publicity.