LIN NEWS
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LIN NewsLIN Earns Excellent Family-Friendly Company CertificationLIN has been selected as an “Excellent Family-Friendly Company” by the Ministry of Gender Equality and Family. An “Excellent Family-Friendly Company” is a company or public institution certified as family-friendly by the Minister of Gender Equality and Family in recognition of its excellence in operating family-friendly systems, aimed at promoting the creation of a family-friendly social environment. LIN was certified as an “Excellent Family-Friendly Company” after passing a rigorous examination of top management leadership, implementation of family-friendly programs (support for childbirth and childcare, flexible work arrangements, creation of family-friendly workplace culture, etc.), and employee satisfaction with family-friendly management. As a certified Excellent Family-Friendly Company, LIN aims to support the balance of work and family life for its employees, thereby improving their quality of life and increasing their job satisfaction, and ultimately contributing to its long-term growth. The firm also aims to fulfill its corporate social responsibility, practice ethical management, and contribute to addressing the country's declining birthrate and aging population.2025.02.06
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News LetterDatabase Protection and Future Outlook (Case Analysis)Target judgment: Supreme Court Ruling No. 2023Do17354 Rendered on April 16, 2024 (Construction Cost Database Case) Summary • Facts: The defendant instructed his employees to develop a program that mimicked a program called 'EMS7' produced by the victim's company, while copying the database of the victim's 'EMS7' program without the victim's permission, and then sold a six-month license for the unauthorized copy of the database for 120,000 won through his company's website from January to February 2018. • Ruling: The lower court held, and the Supreme Court affirmed, that even if some individual elements in the victim's database constituted public data that anyone could access for free, the victim's database was created by systematically arranging the data separately purchased for a fee together with such public data by categorizing and compiling them into “materials” and “unit costs” items, and then subjecting them to the interpretation regarding standard specifications, and therefore the defendant's reproduction of a substantial part of the victim's database infringed the victim's right as a producer of database (reproduction right). • Evaluation: This ruling follows the same legal principles as the previous Supreme Court judgment of May 12, 2022, No. 2021Do1533. The 2022 Supreme Court ruling is understood to be a ruling that protects the investment of the producer of database while also considering the social request for information sharing required in the information society. Unlike the 2022 Supreme Court ruling, the facts of this case involved copying the victim's database and selling it for less than one-tenth of the price, thereby unfairly harming the victim's interests. This case appears to be one where the considerations of the 2022 judgment, such as information sharing and prevention of restriction of competition, were hardly found. 1. Overview of the Case The defendant instructed his employees to develop a program that imitated a program called 'EMS7' (hereinafter referred to as the 'Victim’s Program') produced by the victim's company, and then copied the database of the victim's 'EMS7' program (hereinafter referred to as the 'Victim’s Database') without the victim's permission, and sold a six-month license to use the unauthorized copy of the database for 120,000 won through his company's website from January to February 2018. In response, the prosecutor filed charges on the grounds that (1) the defendant violated the victim's rights as a producer of database (specifically, the right of reproduction) by copying the Victim's Database without authorization for commercial purposes, and (2) the defendant infringed upon the victim's copyright in computer program by creating the defendant's program with similar functions and interface as those of the Victim's Program. 2. Analysis and Reasoning for Each Issue 2.1. Infringement of Database Creator’s Rights In order to constitute an infringement of a database creator's rights, (1) the victim’s database and the victim must be a 'database' and a 'producer of database' under the Copyright Act, respectively, and (2) all or a substantial part of the victim’s database must be reproduced, distributed, broadcast, or transmitted. 2.1.1. Determination of Database and Producer of Database The victim's database is mainly composed of 'materials' and 'unit costs.’ 'Materials' refers to all material costs, labor costs, and expenses , etc. used in construction work, while 'unit costs’ refers to the remuneration and usage fees calculated by taking into account the required quantity per unit of construction of materials, labor, equipment, etc. to carry out a specific construction project, etc., time spent, and construction conditions , etc. – in a simple term, price per unit. The data in the “Materials” of the victim's database is a monthly update of three types of price information: (1) prices published by the Public Procurement Service, (2) transaction prices from the Korea Construction Association, and (3) price information from the Korea Institute of Applied Statistics, of which (2) and (3) are data obtained through paid subscriptions. To build this database, the victim hired specialized employees in each field, including architecture, civil engineering, machinery, and electricity, etc. The data in the “Unit Costs” is based on the “Standard Construction Specifications” published by the Korea Institute of Construction Technology, under the Ministry of Land, Infrastructure and Transport (MOLIT). However, it is not possible to create unit costs by copying the standard construction specifications, but requires a process of combining, interpreting, and applying those data by professional staff. The victim constructed the “Unit Costs” database by entering formulas and numbers derived from interpreting the standard specifications, along with other data collected to calculated construction costs. Considering these circumstances, the lower court held, and the Supreme Court affirmed, that the victim’s database was a compilation of tens of thousands of elements arranged or organized in a systematic manner and that individual elements could be accessed and searched through the victim’s program, thus constituting a “database,” and that the victim was a “producer of database” because it had made significant investment in both human resources and materials in the creation of the victim’s database. In particular, public data, such as prices published by the Public Procurement Service and standardized specifications, which are available to the general public, were also systematically arranged through the victim's interpretation and thus constituted components of a protected 'database' in determining whether the rights of the producer of database were infringed. 2.1.2. Reproduction of a Substantial Part of the Victim's Database The defendants admitted to copying the victim's database during the investigation. According to the evaluation of the Korea Copyright Commission, the defendant's database has “90% similarity in table names, 98.2% similarity in schema, and 90.4% similarity in data” to the victim's database, and also contains “typos, errors, duplicate entries, and data provided only to the victim's company from a certain company” in the victim's database. Given the defendant's testimony, the presence of common errors, the data similarity of over 90%, and the high similarity of table names and database schema, it appears that the defendant copied the victim's database entirely. The lower court found, and the Supreme Court affirmed, that the defendant had copied a substantial part of the victim's database, both quantitatively and qualitatively, and infringed the victim's rights as a producer of database. 2.2. Infringement of Copyright in Computer Program This part of the indictment states that “the defendant copied the victim's program by creating the defendant's program by providing the same or similar functions as the victim's program and configuring the user interface to give users the same or similar impression as the victim's program in general,” but does not state that the defendant copied the source code of the victim's program. The lower court acquitted the defendant of this part of the indictment, finding that although it was admitted that the defendant's program was similar to the victim's program in terms of functions and screen configuration, the construction price program is a program that calculates by entering data such as standard specifications in accordance with the Public Procurement Service's integrated construction price calculation program and manual, so it cannot be said that there is creativity in the functions, menu configuration, interface, etc. of the victim's program. The prosecutor did not appeal this acquittal, so there is no Supreme Court decision on this point. 3. Flow of EU’s Database Protection Policy The rights of a producer of database under the Copyright Act was introduced in 2003 referencing the EU's 1996 Database Protection Directive. The purpose of protecting rights of a producer of database is to encourage investment in the database industry by providing exclusive rights even to database lacking creativity. The EU Commission conducted evaluations of the Database Protection Directive twice, in 2005 and 2018, both of which concluded that there is no clear evidence that the Directive has contributed to the growth of the European database industry or an increase in database production, but that the current balance of stakeholders' interests does not favor repealing or amending the Directive. In this situation, the EU enacted the Data Act (effective January 11, 2024) to secure users' rights to access data and share data with third parties, and partially restricted the rights of database producers. Article 43 of the EU Data Act stipulates that the 1996 Database Protection Directive does not apply to data acquired or generated from a connected product or related service. This is to ensure service users' access to data generated by sensors and machines in the course of using services in IoT environments and rights to share it with third parties (mainly aftermarket operators who are SMEs). In addition, the Court of Justice of the European Union (CJEU) has issued a ruling that increased the burden for rights holders in proving database infringement (CV Online Latvia v. Melons, Case C-762/19, June 3, 2021). In this case, the CJEU held that database infringement through extraction and re-utilization is established only when such infringing activity deprives the database producer of economic benefits that would allow it to recover its investment. According to this ruling, the plaintiff (database producer) must further prove that the defendant's infringement deprives the plaintiff of the economic interest of recovering its investment. This ruling strongly suggests that the rights of the database producer must be properly balanced with the rights of users and third parties (competitors) to access and use the data. It seems to be a trend in EU database policy that, regarding the rights of database producers, such competition law perspectives should be taken into account in order to avoid possible data monopolies. 4. Significance of the Ruling The follows the same legal principles as the Supreme Court's judgment of May 12, 2022, No. 2021Do1533. However, the 2022 ruling stated that (1) the information collected by the defendant from the API server of the victim company was part of the database related to the victim company's accommodation facilities. (2) The information was already well known, and it seems unlikely that it would have taken significant cost or effort to collect it, or it was already publicly available and could have been obtained through the app in this case, and there is no data on, inter alia, updating the database. (3) The court concluded differently from the ruling of this case by denying infringement of the database producer's right (reproduction right) on the grounds that the defendant's reproduction of the database was not considered to be in conflict with the victim company's normal use of the database or to unduly harm the victim's interests. The above 2022 ruling is understood to be a ruling that protects the investment of the database producer while also considering the social request for information sharing required in the information society. It can also be considered to be in line with the recent EU database policy in that it mentions information sharing and prevention of restriction of competition. In order to find the significance of this ruling, it is necessary to comparatively examine the reasons for the acquittal in the 2022 ruling. This case also involved the use of public data, so there are similarities with the case of the 2022 ruling, which involved the collection of publicly available accommodation information, and from a competition law perspective, the defendant, a later market entrant, collected data of the victim, a first mover in the competitive market, on a large scale. However, in this case, the defendant copied and sold almost all of the “materials” and “unit costs” parts of the victim's database, which are the core of the victim's database; although there appears to be a significant amount of public data in the victim's database, there was a significant investment in both human and material resources in building the database, including the work of professional staff to compile, interpret, and apply the data after its collection, and the purchase and updating of some data for a fee; and the defendant in the case of the 2022 ruling appears to have collected the victims' data to develop his own sales strategy and did not resell, or provide to services, such data as is, whereas the defendant in this case copied the victims' database and sold them for less than one-tenth of the price. Therefore, it should be viewed as particularly prejudicial to the victims' interests, which differentiates this case from the case of the 2022 ruling. This case appears to be one where the considerations of the 2022 judgment, such as information sharing and prevention of restriction of competition, were hardly found. * * * If you would like to learn more about this newsletter or have any other questions, please contact Eung Jun JEON of LIN's IP Team at ejjeon@law-lin.com.2025.02.10
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NoticeLin Signs MOU with Korea New & Renewable Energy Association (KNREA)Mutual cooperation on new & renewable energy-related projects through legal services in the field of laws and regulations On October 26, Lin signed an MOU with KNREA to promote the development of the domestic new & renewable energy industry. The agreement was signed to provide various legal services to KNREA and its member companies, including information on new & renewable energy-related laws and regulations. Through the agreement, the two parties agreed to cooperate on ▶ improving new & renewable energy-related laws and systems ▶ providing legal advice on new & renewable energy ▶ and training on new & renewable energy. In line with the trend of carbon neutrality, Lin will exert its best to promote the sustainable development of the renewable energy industry, which can replace conventional energy using fossil fuels and nuclear power. For more information, please visit KNREA website below. http://www.knrea.or.kr/bbs/?act=bbs&subAct=view&bid=agreement&page=1&order_type=desc&seq=58282023.11.10
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Recruitment PersonnelNew RecruitmentsWe are pleased to welcome Jung Bong Lee (Partner), Lance B. Lee (Foreign Legal Consultant - Partner), and Ki Suk Seol (Of Counsel) as new members of our Firm. 1. Jeong Bong Lee, Partner - Incheon Songdo High School(68th) - Yonsei University, Department of Law - Chungnam National University, School of Law - Korean Bar Examination (40th, 1998) - Judicial Research and Training Institute (27th) - University of Vienna – Criminal Justice Institute Visiting Scholar (2008) Past) Incheon District Public Prosecutors’ Office – Prosecutor (2001) Past) Daejeon District Public Prosecutors’ Office, Hongseong Branch – Prosecutor (2003) Past) Incheon District Public Prosecutors’ Office, Bucheon Branch – Prosecutor (2005) Past) Seoul Central District Public Prosecutors’ Office – Prosecutor (2007) Past) Supreme Prosecutors’ Office - Prosecutor Researcher (2007) Past) Busan District Public Prosecutors’ Office – Prosecutor (2013) Past) Financial Intelligence Unit (FIU) - Head of Strategic Analytics (2014) Past) Chuncheon District Public Prosecutors’ Office, Gangneung Branch – Chief Prosecutor (2016) Past) Daegu District Public Prosecutors’ Office, Seobu Branch – Chief Prosecutor, Criminal Division 3 (2017) Past) Seoul Eastern District Public Prosecutors’ Office - Chief Prosecutor, Criminal Division 5 (2018) Past) Seoul Southern District Public Prosecutors’ Office - Chief Prosecutor, Criminal Division 2 (2019) Past) Supreme Prosecutors’ Office – Human Rights Policy Officer (2020) Past) Gwangju District Public Prosecutors’ Office – Human Rights Protection Officer (2021) Past) Chuncheon District Public Prosecutors’ Office – Chief of Wonju Branch (2022) Past) Seoul High Prosecutors’ Office (Daegu District Public Prosecutors’ Office, Secondment(2023), Voluntary Resignation) Current) LIN Since his appointment as a prosecutor in 2001, Mr. Lee has served as a prosecutor at the Seoul Central District Prosecutors' Office, a researcher at the Supreme Prosecutors' Office, a prosecutor at the Busan District Prosecutors' Office, a secondee at the Financial Intelligence Unit (FIU), a deputy prosecutor at the Seoul Eastern and Southern District Prosecutors' Offices, and a human rights policy officer at the Supreme Prosecutors' Office, before finally retiring in 2023 as the Chief Prosecutor of the Wonju District Prosecutors' Office. During his 22 years and 8 months as a prosecutor, he discharged a wide range of cases, including intellectual property infringement, technology theft and unfair competition, medical malpractice, sexual assault, finance, taxation, homicide, special crime, public security, and human rights policy (due process compliance in investigations). Mr. Lee, who joined Lin as a partner in November 2023, plans to actively engage in various cases such as securities, finance, and corporate anti-corruption based on diverse investigative and theoretical experience accumulated from the prosecution. Lin boasts top domestic experts in responding to financial, corporate crimes, and other investigative matters, and we will strive to provide our clients with high-quality legal services. 2. Lance B. Lee, Foreign Legal Consultant (Partner) - Boston College Law School – J.D. - University of Virginia – B.A. Past) Dentons Lee - Chief Operating Officer, Head of International Arbitration & Litigation and Partner, 2012-2023 Past) Kim & Chang - Partner Past) STX Shipbuilding Corporation – Group General Counsel Past) POSCO – Overseas Projects Team Leader Past) U.S. Army JAG Corps – Trial Counsel, Prosecutor and Captain Past) Gainer, Rient & Hotis - Attorney Current) LIN – Head of International Arbitration & Litigation, Partner (Present) Mr. Lee, a U.S. attorney, was responsible for various international arbitration and litigation cases for 11 years at Kim & Chang, representing numerous international corporations and diverse fields. Serving as General Counsel at STX Shipbuilding Corporation and Head of the International Legal Team at POSCO, he handled tasks such as international arbitration, international litigation, IP, corporate M&A, contract negotiations, and joint investments for global conglomerates. Subsequently, as a partner at the Seoul Office of Dentons, he worked for 11 years as the Head of the International Arbitration/Litigation Team, leading numerous international arbitration cases as lead counsel. In 2024, for the first time in history, more than half of the global population will be holding elections, signaling the end of America’s “unilateral hegemony” and prompting the world to prepare for more disputes. With major industrial powers intensifying their industrial policies and protectionist measures to secure leadership in advanced and eco-friendly industries post-election, there is an anticipated increase in international disputes, particularly in advanced technology sectors such as semiconductors and information technology (IT). Mr. Lee, a foreign attorney leading the International Arbitration/Litigation Team, will leverage his experience and expertise to actively discharge legal advice on the prevention and resolution of international disputes for various global corporations based on his accumulated knowledge and professionalism. 3. Ki Suk Seol, Of Counsel - Hongik University, Department of Architecture - Kyungpook National University, Graduate School of Law, - KAIST, Intellectual Property Graduate School - Bar Examination (3rd) Past) Eland Group, Legal Department Past) Hyundai Engineering, Legal Department Past) Ministry of Justice, Legal Affairs Officer Past) Ministry of Justice, Legal Affairs Secretary Current) LIN Mr. Seol, as an in-house counsel for a large corporation, has accumulated expertise in a wide range of legal affairs that can arise within the company, including civil and criminal litigation and consultation, fair trade practices, compliance, intellectual property, construction, and labor-related dispute management. Subsequently, serving as a Legal Affairs Secretary at the Ministry of Justice, he handled administrative adjudication and litigation, legislation drafting and revision, interpretation of laws and rights, review of government and legislative bills, formulation of legislative strategies, improvement of attorney and notary systems, and enhancement of legal technology systems. Through these roles, he has built expertise in planning, administration, and legislation. Amidst the ongoing challenges such as the increase in unsold and unoccupied properties, rising construction costs, high interest rates, and stagnation in real estate PF, it is anticipated that legal disputes and litigation among real estate market participants, including developers, contractors, financial institutions, trustees, and local housing associations, will continue to rise. Mr. Seol, who has served as an in-house counsel for a global integrated construction company, has handled a wide range of cases from civil and criminal matters to fair trade, construction, labor, and compliance issues, from the client's perspective, collaborating with various major law firms. Drawing upon his extensive practical experience accumulated in the field, he is committed to providing tailored solutions, not only advisory services but also litigation support, to corporate clients. 4. Recruitment of Foreign Lawyer With recent concerns over deflation in China, attitudes of Korean companies towards China have become notably cautious. Consequently, there is a growing need for professional advice regarding entry into the Chinese market. Recognizing this demand, Lin has recently recruited Ms. Wenpu Yang (Chinese attorney), aiming to provide high-quality legal service that aligns with our clients’ business strategies and management objectives on various issues related to Sino-Korean business relations. Going forward, Lin promises to continuously recruit verified talents in various fields to ensure customer satisfaction.2024.02.05