A K-pop-based Explanation of Music Copyright Part 2.

Joseph Hwang

While copyright recognizes the creator’s exclusive rights, some conceptual distinctions exist between the continental civil law system and the Anglo-American law system. Civil law is a legal system that originated from Roman law and was primarily developed in Germany and France in continental Europe. It has been widely adopted in Eurasia and South America, whereas Anglo-American law is a legal system used by the Commonwealth of Nations and other English-speaking countries. South Korea has adopted the continental civil law system, and the concept of copyright reflects many ideas and philosophies of the continental civil law system. 

In the civil law system, the concept of copyright has developed with a tendency to recognize creators’ exclusive rights more fundamentally. The aspect of the author’s rights is emphasized more. In contrast, in the Anglo-American law system, the exclusivity of replication is also emphasized; thus, this right is referred to as “copyright.” As stated in the Korean Copyright Act, the purpose of the Copyright Act is to protect the rights of creators and promote the fair use of their works. There are two important legal interests: the rights of the creator and the promotion of the use of the creator’s work for users. 

These distinctions in copyright concepts have led to differences in copyright utilization schemes. The civil law system considers creators’ rights more fundamental; therefore, copyright accrues the moment a creator creates the work. Only the creation of the work is required for copyright to occur. This perspective prioritizes the creator’s rights over the exploitation of the work. In contrast, the Anglo-American law system requires a certain formality for copyright to be recognized, even if the creator has produced the work. In other words, once the creator has made the work, he or she must register it with the Copyright Office to obtain exclusive rights. This is why the copyright system of the civil law system is called unmodalism, while the Anglo-American law system is referred to as modalism or formalism.

Both formalism and informalism have advantages and disadvantages. While informalism may seem more advantageous from a creator’s perspective, it is disadvantageous in promoting the use of works due to the absence of a uniform format. Moreover, since the registration of works is not mandatory, large-scale industrialization may lead to a lack of information or delays in using works when a uniform format is required. However, in formalism, registration is a basic requirement of copyright, meaning that works must be registered with the Copyright Office in a specific format. On the contrary, this registration can be a hassle for creators; nonetheless, it tends to increase royalties due to the convenience it offers users.

In addition to composers, lyricists, and arrangers who create musical works, music neighboring rights also extend to performers who perform those works and to phonogram producers who make recordings. For someone to use a musical work once, he or she must know the rights information of multiple rights holders and verify the authenticity of the information. To alleviate this problem, most countries’ copyright acts have adopted a centralized administration method in which authors’ copyrights are held in trust by a government-approved nonprofit organization, and the organization grants licenses on behalf of individual authors. I’ll describe copyright trusts in more detail later. 

Apple was at the forefront of the transition from analog to digital music, developing the iPod and iPhone. As the era of infinite copying of recorded music became commonplace, the issue of copyright licensing emerged as a challenge. In the Anglo-American law system, the Copyright Office made it easy to register works and provide metadata about registered musical works in a uniform format. It was indeed easier for the Anglo-American law system to establish a digital music market than for countries with civil law systems that adopted a no-format approach. This phenomenon proved that the copyright philosophy of the Anglo-American law system, which leaned more toward promoting the use of works, was more conducive to digital industrialization and had shifted the music industry’s power to consumers more than before.

This was one of the reasons why South Korea’s digital music market had been struggling. South Korea’s internet and technology industry was growing by leaps and bounds, but the national copyright system was structured in a way that did not support it. This legal barrier was one of the reasons Apple was slow to enter the Korean music market compared to other countries.

To be continued in Part 3.

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

Part 6.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01156113459.html

Part 7.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01543027967.html

Part 8.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01386463567.html

Part 9.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01719355268.html