메타버스 속 지식재산권 관련 국제분쟁 해결 －국제재판관할, 준거법, 중재조항에 관하여－

This article analyzes the international jurisdiction, governing law, and arbitration clauses in dispute resolution related to intellectual property (IP) rights in the metaverse, a virtual environment where users can interact and create content. It explains the practical importance of distinguishing between the location of the infringing act and the place where the infringement results occur, as in cases of IP infringement, jurisdiction is recognized in both the courts of the location of the infringing act and the courts of the location where the infringement results occur, but only the court in the location of the ‘substantial’ infringing act has jurisdiction over the total damages, including the results that occur abroad (Korean Private International Law, Article 39). Moreover, the law of the country where the infringement results occur becomes the governing law (Korean Private International Law, Article 40). If a plaintiff is satisfied with compensation for damages that occurred in their own country, they can summon the defendant to their country’s court, but if they want to receive compensation for total damages that occurred worldwide, they must file a lawsuit in the location of the defendant’s substantial infringing act or the location of the defendant’s habitual residence. Regarding the governing law, in the case of IP infringement, the law of the country where the infringement results occur becomes the governing law. In the case of ubiquitous infringement, to prevent fragmentation of governing laws by country as a result of the principle of lex loci protectionis, the law of the country most closely related to the infringement could be the governing law. If an act of unfair competition is regarded as a tort, international jurisdiction is recognized in the courts of the place of infringement and the place where the infringement result occurred (Korean Private International Law, Article 44). In terms of the governing law, the law of the country where the infringing act took place or where the infringement result occurred becomes the applicable law (Korean Private International Law, Article 52(1)). Regarding the agreement on the governing law, the parties are generally permitted to have an agreement on the governing law with respect to remedies for IP infringement, but matters related to the validity, transferability and duration of IP rights are not permitted for parties to have an agreement on the governing law. Therefore, even if there is a governing law clause in the Terms of Use of the metaverse platform, it can only be set for remedies for IP rights infringement. For matters related to the validity, transferability and duration of IP rights themselves, the principle of lex loci protectionis or the law of the country of registration should apply, even if there is a governing law clause in the Terms of Use.