Cultural industry, with even more importance, has emerged as a driving industry for the 21th century based on human creativity and sensitivity. For the cultural industry's advancement, virtuous cycle activating the production, distribution and use of ...
Cultural industry, with even more importance, has emerged as a driving industry for the 21th century based on human creativity and sensitivity. For the cultural industry's advancement, virtuous cycle activating the production, distribution and use of cultural contents should be established. This study considers the legal and constitutional issues and its potential settlements in virtue of Copyright law and Cultural industry-related laws.
Firstly in regard to the production, copyright-related issues are raised on contents involved with multi-parties or produced using pre-existing contents. A typical example of the kind is UCC(User-Created Content), however, UCC brings about social problem due to its reliance on illegal use of other copyrighted works, which is directly involved with infringement of not only author's property right but also moral right. Particularly, inalienability of author's moral right can be the hindrance in content's production and distribution. Accordingly, to facilitate the production and distribution of contents, measures such as waiver of moral right, application to third parties of special agreement not to exercise the right of integrity of content, and the range of exception to unavoidable modification in right of integrity need to be taken into consideration. In addition, since licensing according to individual contract from biased toward creator-oriented view make it tardy to produce new contents, adjustment of applicable range of contents classified as made-for-hire and provided under Special Provisions concerning Cinematographic Works would be a good approach.
In case that direct authorization of the author is not possible statutory license is needed for effective production However, statutory license, in a way, contains some red-tape formalities so it should be implemented in a way that applicant's effort and cost is minimized in application method, requirement, procedure of licensing. In term of interpretation on the range of license for emerging new media, right to use for the new media should be construed to subject to copyright owner when the new media hardly affects the existing market while creating a new market.
Not only copyright issues but also finance matter is a critical factor in cultural contents production. SPC for cultural industry set forth under the revision of Framework Act on the Promotion of Cultural Industries enables efficiently separated operations in both production and finance sectors. In this context, it can be said that institutional framework securing transparent capital flow has been established. Nevertheless, since investors ought to assume the high risk in case the content is not completed, current system should be made supplemented by the introduction of Completion Bond. Criteria for value evaluation model on which popularity and profitability of potential cultural content is evaluated should be prepared so that investment in private sector such as bank can be more actively induced to the cultural industry.
Cultural contents are mainly distributed through media giant's channel such as broadcasting companies, mobile network operators, and major portals. Consequently, middle and small sized content production have had no choice but to linger in subordinated position. To make this irrationality in order, Framework Act on the Promotion of Cultural Industries should be revised to effectively apply to the Anti-trust Law and Fair Subcontract Transactions Act.
Second, the liability of OSPs is a critical issue in regard to the content distribution. When copyright infringement is concerned, OSP, as a medium for distribution, should be reliable for indirect liability such as aid and abetment. Excessive obligation of care or compensation, vise versa, would result in shrink participation, accordingly, jeopardize the active distribution. The essential part of OSP's liability is 'notice and takedown', which is ex post facto remedy for the infringement. These provisions are concerning exemption under the Copyright Act article 102, 103. Article 104 requires certain types of OSPs that are relatively more vulnerable to infringement to design technical measure for the protection of copyrighted works and imposes fine for negligence. However, facing criticisms on its obligatory feature and on violation of technical neutrality, further consideration for revision on article 104 is needed.
As the transmission speed of large sized content and motion picture is getting faster, copyright infringements concerning broadcasting contents have been increasing. To cope with the problems arising from the environmental change of broadcasting contents use, equality among moral right holders, and imperfect treatment as right of reproduction, right of transmission should apply to the broadcasting organization. Right of publicity also need to be introduced to the broadcasting organization considering its separability between person who reproduces and distributes. Draft basic proposal for the WIPO Treaty on the Protection of Broadcasting Organizationswould be meaningful reference even though it failed to be embodied as a treaty. Of course, benefits are practically limited to the broadcasting organization in neighboring right holder's position.
'Must carry' issue has been proposed with the emergence of IPTV. If 'must carry' of the national-wide Public broadcasting service is obliged to every new media coming forth for the enhanced public good, exertion of copyright and neighboring right will be excluded from the outset biased to the easiness in new media's operation. Then it would not avoid the criticism that it challenges the existing basis of copyright itself. Transmitting broadcasting contents beyond simultaneous retransmission is still involved with authorization of copyrighter of the contents. In that sense, to facilitate the distribution of broadcasting contents, remuneration system or right management through collective licensing system should be established.
Decision on whether or not the temporary copy falls upon reproduction is being questioned as the contents using temporary copy such as streaming is getting increased. Although the opposite or cautious views are predominant in Korea, draft revised Copyright Act incorporated the temporary copy within the definition of reproduction in its draft by the KOR-US FTA negotiation. Right of reproduction is not applied only when the temporary copy is necessarily requested in the course of technical procedure. It is expressively provided in the draft that temporary copy satisfied by 3-step test does not apply to the right of reproduction, and judging this the court should consider the 4 factors of fair use. Court's judgment of individual factor will be more important after the draft is confirmed as revised act, consequently, the limitation in use of copyrighted works using temporary copy will be on the surface.
Unlike other cultural contents, there are legal issues on comic booksand animation due to their particularity in distribution method and media. Comic books are distributed largely through rental right, which doesn't apply to books so that comic book right holder does not enjoy appropriate profit. Therefore rental right need to be considered to apply to the books including comic books. This application requires demonstration by market analysis through actual experiments in advance. Rental right should be supported by series of measures including setting the holdback period for rental, dual pricing etc. As animation considerably rely its distribution on broadcast, quota for domestic animation is under way through the revision of broadcast law. As quota system under the broadcast law is physical time-based concept, it contains the problem that Korean animation tends not to be on air during the prime time. Handling this issue, incentive grant for broadcasting home-made animation during prime time can be an alternative. Meanwhile, US government recognizes the quota as an discrimination for the market access and raises a question, but quota need to be temporarily maintained for the fortified global competitiveness.
To boost the efficient distribution of cultural contents, convenience in calculation and distribution of license fee should be premised as well as copyright protection. Since COI contains large amount of content information, using COI will contribute to the solution for the issues concerning licensing and protection and registration of copyrighted works. Even if some claim from this OCI's utilities that Music Industry Promotion Act mandate the use of OCI by revising the existing law, however, article 11 is nothing but a provision on fine for negligence. Given that the standard for the OCI has not been agreed, mandatory indication of OCI is would not be reasonable policyuntil institutional complementary measures such as business support is preceded.
Lastly in regard to the use of cultural contents, improvement of collective right management should be firstly taken consideration. Any person who intents to engaged in copyright management service should be registered as the Japanese system, however in case of collective right management, license system is deemed reasonable considering its ripple effects. Introduction of Extended Collective License(ECL) needs also be reviewed but there is limitation in requirement for ECL and in application to the public good area.
Digital cultural contents produced by government organization have features as public goods and public services, ECL system can be introduced to the collective management of these contents. As many of copyright holders on cyber space tend not to be easily identified, indication of licensing information has great implication in favor of activated distribution. Therefore, indication of licensing information is needed, which should be easy to understand and use on internet while securing both activated use and protection of copyrighted works. Large numbers of internet users prohibit the alteration of their contents exhibiting "No alteration" logo on their posting through voluntary system. However, people need to be encouraged to shift their ideas to the generousness for the free use of information.
As the technology in copying devices and media has been advanced, the range of reproduction for private use is getting magnified and affects the right holder's economic benefits. If all the reproduction for private use is required for copyrighter's authorization, this could lead to the unconditional deprivation of public's benefit, which is not practically possible. In this case, remuneration for private copying needs to be adopted. Remuneration system shall be introduced and operated in a way that compensation is imposed at least on copying device and media for digital recording and video recording and collective right management entity administers its procedure.
Term of protection for copyright was extended as a result of KOR-US FTA negotiation. This issue is directly connected with, so to speak, national wealth outflow. Out-bound license fee to US is expected to encompass the domestic right holder's profits with the effect of extended 20 years. By the way, this policy was supposed to discuss after securing the global competitiveness. it is premature to discuss on extending the term and this measure should complemented by institutional supports for stronger the global competitiveness. On protection for contents user, Motion picture and Video products Promotion Act and Music Industry Promotion Act provide mandatory indication on contents of trade name and rating, as well as date of mark under Online Digital Contents Industry Promotion Act. However the mandatory indication of date of mark has no relation with the protection of users and should be exclude from the requirement provided in the former 2 Acts. In spite that Copyright Act has evolved to extend the method and object of protection, it basically still retains the old framework based on law and treaty of copy technology era. In upcoming times of advanced technology, joint works, combined works, works-for-hire and functional works will be increased in the production of cultural contents. As a result, issue on the limitation of moral right and statutory license will be controversial in court. In distribution sector, the liability of OSP will be more important andemergence of new media and technology beyond IPTV and temporary copy may trigger correspondent new discussion for the protection of copyright and neighboring right holder. In contents Use, collective management will be developed and individual right management will be increased. Contents use by remuneration such as statutory license, remuneration for private copying, orphan works is expected to increase as well. In this regard, copyright's transformation into claiming right will be accelerated while free and easy information use will be extended through CCL.