• Journal of the Korean Society for Library and Information Science
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• v.55 no.3
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• pp.131-154
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• 2021

This study is to in-depth analysis of the copyright issues related to the library's e-book service, which is the cause of the recent conflict between the publishing industry and the library industry. To this end, the purpose and outline of the copyright system were briefly summarized. Then, the jurisprudence of the Copyright Act applied to the borrowing of paper books and e-books was analyzed, and the position of the publisher's association and the library industry were reviewed together. In addition, problems of the current copyright act related to e-book services were diagnosed and directions for improvement were sought. Unlike in the case of paper books, first sale doctrine does not apply to e-book borrowing, so the library cannot acquire the right to service just by purchasing e-books. Based on the contract signed with the distributor in the process of purchasing the e-book, the library acquires the right to service the e-book. However, if the validity period of the exclusive publication right expires, the contract itself becomes invalid, which can cause serious problems in the stability of library services and preservation of resources. In order to solve this problem, it is suggested that the first sale doctrine needs to be extended to digital works.

• Journal of the Korean BIBLIA Society for library and Information Science
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• v.15 no.1
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• pp.117-135
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• 2004

The purpose of the study is to suggest preferable future strategies for interlibrary use of e-journal. For this purpose, the study reviewed the meaning of interlibrary use for e-journal in the digital environment and the disputes about it, and analyzed several license clauses for interlibrary use.

• Journal of the Korean Society for information Management
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• v.40 no.1
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• pp.199-224
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• 2023

The purpose of this study is to develop a reasonable improvement plan for e-book licenses as a prerequisite for the continued operation of library e-book services. The study aims to understand the fierce conflict surrounding e-book licenses between domestic libraries and the publishing industry and to propose solutions based on this understanding. To achieve this, the legal meaning of e-book licenses is analyzed, and the fundamental reasons for conflict between the publishing industry and libraries are examined in relation to the characteristics of e-books. In addition, various types of e-book licenses are classified, and the status of library e-book licenses and conflicts in major countries around the world, including Korea, the United States, Germany, France, and Japan, are investigated. Based on this, implications that can help resolve domestic issues are presented.

• 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 INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.133-160
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• 2009

In International trade the buyer and seller are normally separated from on another not only by distance but also by differences in language and culture. It is rarely possible for the performance of obligations to be simultaneous and the performance of contracts therefore calls for trust in a situation in which the parties are unlikely to feel able to trust each other unless they have a longstanding and successful relationship. Thus the seller under an international contract of sale will not wish to surrender documents of title to goods to the buyer until he has at least an assurance of payment, and no buyer will wish to pay for goods until he has received them. A gap of distrust thus exists which is often bridged by the undertaking of an intermediary known and trusted by both parties who will undertake on his own liability to pay the seller the contract price in return for the documents of title and then pass the documents to the buyer in return for the reimbursement. This is a common explanation of the theory behind the documentary letter of credit in which the undertaking of a bank of international repute serves as a "guarantee" to each party that the other will perform his obligations. The independence principle, also referred to as the "autonomy principle", is at the core of letter of credit or bank guarantee law. This principle provides that the letter of credit or bank guarantee is independent of the underlying contractual commitment - that is, the transaction that the credit is intented to secure - between the applicant and the beneficiary ; the credit is also independent of the relationship between the bank and its customer, the applicant. The most important exception to the independence principle is the doctrine of fraud in the transaction. A strict interpretation of the rule that the guarantee is independent of the underlying transaction would lead to the conclusion that neither fraud nor manifest abuse of rights by the beneficiary would constitute an objection to payment. There is one major problem related to "Independent guarantees", namely abusive or unfair callings. The beneficiary may make an unfair calling under the guarantee. The countermeasure of beneficiary's unfair calling divided three cases. First, advance countermeasure namely by contract. In other words, when the formation of the contract, the parties must insert the Force Majeure Clause, Arbitration Clause to Contract, and clear statement to the condition for demand calling. Second, post countermeasure namely by court. Many countries, including the United States, authorize the courts to grant an order enjoining the issuer from paying or enjoining the beneficiary from receiving payment under the guaranty letter. Third, Export Insurance. For example, the Export Credit Guarantees Department is prepared, subject to certain conditions, to cover the risk of unfair calling. Of course, KEIC in Korea is cover the risk of the all things for guarantees. On international projects, contractor performance is usually guaranteed by either a standby letters of credit or Independent guarantee. These instruments will be care the parties.