The public performance right, which is frequently used, is the right of the communication to the pubic through various means. And the public performance right is a non-copy related right like a broadcast right or a making available right
The publi...
The public performance right, which is frequently used, is the right of the communication to the pubic through various means. And the public performance right is a non-copy related right like a broadcast right or a making available right
The public performance right is composed of three methods in Korean copyright law. That is a human''s performance and its communication, the playing of copies, the transmission to the place at which the same people occupy. However this definition causes problems in analyzing the exact meaning due to the overlapping with a broadcast or a making avaliable right. As compared with Korean Copyright law, German and Japanese laws provide the performance right respectively according to human''s performing aspects. On the contrary the U.S. and France Laws provides the public performance right as a general communication right.
The public performance right means the communication of the works publicly to the public. Korean copyright law does not provide ''publicly'' in the definition provision. But the U.S. law provides the definition of ''publicly'' which draws a distinct line between a private performance and a public performance. Considering this point, this study showed the meaning of ''publicly'' and suggested a new provision as to that definition.
The environment of distribution in works causes an abrupt change in the digital network. Regarding this aspects, this study suggested that interactive transmission should be ''making available'', non-interactive transmission should be ''broadcasting'' and the representation of the digital transmission should be ''a performance''.
In reconstructing the concept of the ''performance'', there is a need to redefine the broadcasting. Thus this study proposed that the definition of ''broadcasting'' should be "the communication by radio, television and such as a similar means equipped with receiving devices". In addition, this study designated communication of broadcasting through receiving devices as "the representation of the broadcast works" and suggested a definition provision for that meaning.
This study proposed that ''the same occupant transmission'' in the definition of ''performance'' should be eliminated so that the public performance right can be functioned as the general communication right.
According to the reconstruction of the performance definition, it is required to reexamine the limitation provision in the public performance right. Korean copyright law limits the public performance right for the education, a news reporting and non commercial uses.
Section 23, which limits the performance right for the education, has a problem with whom its ''educational purpose'' is too broad. And Section 23 does not deal with a distant learning. Therefore the performance at the education facility should differentiate the limitation requirement on a school event from face to face teaching.
And this study proposed that section 23''s limitation should not apply to dramatic works and should include ''a making available right'' and technological protection measures for the distant learning.
Because section 26(1), which limits the public performance right for non-commercial uses, has a problem with a wide exemption, the exemption of section 26(1) should be restricted to non dramatic works and be permitted only for the use of public purposes like a charity or a disaster relief.
Section 26(2) permits an extensive exemption for commercial establishments. Thus, this study demonstrated that the object of exemption should be restricted to phonorecords on sale and the size of establishments for the exemption should be specified.
Besides the copyright owner''s right for the representation of broadcast works, there is a need to establish the limitation provision for that right. This study proposed that the copyright owner should have a right to receive a remuneration for non-commercial uses or in the case of no admission fees, and there should be a exemption clause for the utilization in the public purposes or small establishments. Finally, this study suggested a bill which broadcasters have a exclusive right of the use at the place where admission fees are taken.
※ Key Words: broadcasting, copyright, limitation, making available right, performance, public, public performance, public performance right