A K-pop-based Explanation of Music Copyright Part 3.

Posted by Joseph Hwang Joseph Hwang 8/14/2024

A K-pop-based Explanation of Music Copyright Part 3.

Joseph Hwang

Copyright law does not protect the thoughts or ideas in a work, but rather the “expression” of those ideas. The protection of creative ideas is dealt with in the intellectual property field (patent law, etc.). For example, there are many classics in the world with similar themes, such as the story of Cinderella, but what if the expression of the story (plot, dialog, characters, narrative text, etc.) is different, it is not considered copyright infringement. Copyright law protects expression.

For a work to be protected by copyright law, it must have copyrightability. The law requires the following requirements:

1. Being subject to the scope of literature, scholarship, or art.

The protection of creative ideas outside these scopes is covered by industrial property rights, as mentioned above. Musical works are unquestionably protected by copyright law as they fall within the scope of art. A composer who creates a melody and chord progression, a lyricist who writes lyrics to that melody, and an arranger who arranges the music in a format for recording are all authors of a single musical work.

Authors and rights holders are different. While the author owns the copyright, the property rights of the copyright are transferable and can change hands. When a copyright is transferred, the transferor is the author and the transferee is the copyright holder. A transfer is a legal movement of rights, and the moment a right is transferred, the right of the transferor is extinguished, and the right is transferred to the transferee. Despite being an intangible right, the concepts of existence and disappearance are conceptual, but those create the same issue of ownership as the transfer of material. This is the effect of the law.

2. Being creative

Two main theories on the criteria for recognizing creativity are opposed. Two main theories: the Labor Theory, which considers the criteria for copyright recognition as the creator's “payment for labor,” and recognizes creativity even with a deficient level of creativity; and the Inducement Theory, which considers the work to be a “payment for inducing cultural development,” which is the ultimate purpose of copyright law, and requires a level of creativity that can induce some degree of cultural development. The Korean courts' jurisprudence recognizes the labor theory, which means that even minimal creativity tends to be sufficient for copyrightability. The requirements for copyright do not require a high degree of creativity. (Specialized Legal Course on Copyright Act, 2001, Judicial Training Institute, p. 19)

3. Being an expression of thought or feeling

As mentioned previously, copyright law protects the “expression” of a work. Since a work is an expression of an idea, it is necessary to prove its existence, and this expression is proof that the work exists in the world and an external recognition tool that allows others to recognize the work. However, suppose the creator alone expresses the work without witnesses. In that case, it does not fulfill one of the purposes of copyright law, which is to promote fair use of the work, so the law requires that the expression of the work be 'externally manifested'. This 'external expression' is called 'publication' under copyright law and is one of the important requirements for a work to be recognized as a copyrightable work. (Specialized Legal Course on Copyright Act, 2001, Judicial Research and Training Institute, p. 37)

Concerning the above requirement of "expression of thought or feeling" for copyrightability, musical works are at a significant disadvantage to literary or graphic works. A work is the expression of a concept. Concepts are intangible, thoughts, and works are the expression of the results of those thoughts. However, unlike the creation of music, other creative works such as literature or painting are recorded at the same time they are created. This is very beneficial for the "outward expression" mentioned above. Music is expressed in sound, so it disappears when the vibrations of the air disappear. In literary works, the outward expression of writing occurs as an outcome of the creation of a manuscript. In painting works, the physical result of a painting is inevitably produced. Music, however, uses a volatile material, sound, as its expressional material. Of course, the notes can be recorded in a musical score, but the score itself is not copyrightable, but the combination of conceptual sounds recorded in the score is recognized as a work. However, with the development of media technology, it is now possible to play back the recorded sound data and leave an objective record of the musical expression. This physical realization of a volatile work is called "fixation". In the case of practical copyright litigation, this fixation is important in proving copyrightability and judging publication.

To be continued in Part 4.

Series Articles

Part 1.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music.html

Part 2.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01103635833.html

Part 3.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01024960771.html

Part 4.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01817572733.html

Part 5.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_0516893882.html