Research Report
Ⅰ. Background and Purposes
□ Creative economy of the new Park Geun-hye administration refers to the economic activities or phenomena with daring paradigm shift at the core which converge industries with other industries or culture based on information technology or scientific technology, thus breaking the walls between industries and creating brand-new businesses and job opportunities. Here any Analysis of the creative economy have to consider the role of intellectual property, which is a key ingredient for the development of the creative society.
□ A major challenge for shaping policies for the creative economy is related to intellectual property rights and its license. It ist growing more and more importance of intellectual property rights among others. Today intellectual property license agreements are universal and many companies license intellectual property, either as vendor or user, to help run the business. The concept of creative economy constitute a set of knowledge- based activities, focused on but not limited to arts, potentially generating revenues from trade and intellectual property rights. Therefor are needed to the cycle of creation, production and distribution of goods, services, and rights that use creativity and intellectual capital as primary inputs.
□ The aim of this Paper is to legal explore the interplay between intellectual property and bankruptcy law in Germany and Austrian, with an emphasis on the inadequate protection the Law provides to intellectual property licenses.
○ Intellectual property licenses are generally liable to sometimes surprising treatment when one party files for bankruptcy. The licenses will likely be treated as executory contracts in bankruptcy. This treatment can be devastating to a business that relies on the intellectual property licenses involved, either as a primary asset or as a tool on which their business is run.
Ⅱ. Main Contents
□ The Paper address the specific concerns of intellectual property licenses and its legal arrangements under insolvency procedures. In general, the license agreements are typically sophisticated contracts with ongoing obligations for both parties: service, support, and upgrade responsibilities on the part of the licensor, and confidentiality requirements and intellectual property rights and use restrictions on the part of the licensee, etc.
□ Part II of this Comment explore the general legal nature and character of the intellectual property rights and intellectual property licenses in German and Austrian Law.
□ Part III and Part IV explain the protection of intellectual property licenses in German and Austrian Law.
○ The German Ministry of Justice currently make amendments to insolvency-related legislation. In particular, it is considered to investigate legislative bill of a new § 108a German Bankruptcy Code in terms of protections of intellectual property licenses in licensor's insolvency. According to the article, reject the trustee the fulfillment of a license agreement, the licensee may require a new license agreement, in which the licensee is allowed the continued use of the protected right.
○ The Austrian Ministry of Justice was working on a draft for a 2008 amendment to the Austrian Bankruptcy Code. On July 1. 2010 the Austrian Bankruptcy Reform Act entered into force. The reform intends to expend the concept of the debtor in possession to business bankruptcies and to expedite decisions on creditor applications for the opening of insolvency procedures. If the license contract could jeopardize the continuation of the company's contract with the debtor can terminate with the debtor contracts under certain condition. The license agreement to rescind the contract or to terminate the contract in the event of insolvency procedures is not permitted under certain condition.
□ Part V of this Comment examine thought-provoking legal issues in Korean Law from various perspectives under questionable situations in German and Austrian Law:
○ Availability of Privilege on intellectual property licenses under Korean Bankruptcy Law; protections of intellectual property licenses in licensor's insolvency; protections of intellectual property licenses in licensee's insolvency; restrictions on ipso facto clauses
□ The Paper delve into the various solutions to legal arrangement of intellectual property licenses under insolvency procedures and proposes a novel approach to the problems which may resolve the inconsistencies in the Law.
○ Under the current Korean Law, parties may seek out various other techniques to ensure that their right are protected in the event of the bankruptcy filing by the other party to the agreement. Whereas it could be necessary to legislative resolve for legal stability and safety of transaction.
Ⅲ. Expected Effects
□ The paper based on a variety of approaches, motivated by equally diverse policy objectives, e.g. law, social or economic, provide policy options and judgment according on legal research and survey.
□ Intellectual property rights and intellectual property licenses of creative innovators and start-up ventures will be effectively protected from predatory practices of mainstream economic players and powerful business. Even if many companies are susceptible to failure in our entrepreneurial culture, along with system reform, individuals and small enterprises are able to easy jump into new ventures and start up business based on new ideas. Entrepreneurial culture also begins with tolerance for failure.
□ It is possible to predict that a legal protection reform of intellectual property licenses will be raised to promote M&As, help start-ups with initial public offering and aid failed business.