A K-pop-based Explanation of Music Copyright Part 6.

Posted by Joseph Hwang Joseph Hwang 8/17/2024

A K-pop-based Explanation of Music Copyright Part 6.

Joseph Hwang

Copyright is a right that recognizes only the author. As noted previously, copyright law does not protect thoughts or ideas. Copyright law protects only expressions. It safeguards the external expression of an idea, and only that expression is protected. Therefore, unexpressed ideas are not copyrightable and are not protected by law.

The problem is that the person expressing the idea is not an author. The author is the person who manifests and expresses the idea. To protect the author’s copyright, there may be a problem when the expression of the concept is carried out by someone else who is not the author. This means that only half of the copyright protection is available. Thus, copyright law has become necessary to protect not only the copyright holder but also those who perform the expression to the public; the performer is a representative individual.

The Korean Copyright Act protects performers and phonogram rights holders who are producers of sound recordings to secure the external expression of copyrightable works. These two categories of persons—performers and phonogram producers—are referred to in the law as neighboring rights holders. In addition to these two groups, another group is recognized as a neighboring rights holder: broadcasters. Three neighboring rights holders are defined under the Korean Copyright Act: performers, phonogram producers, and broadcasters. Of these, only performers have moral rights in addition to property rights. Of course, performers’ moral rights are also inalienable and cannot be transferred to others (Article 68).

1. Performers’ Rights

- Moral Rights

(1) Right of Paternity (Article 66)

(2) Right of Integrity (Article 67)

- Property Rights

(1) Right of Reproduction (Article 69)

(2) Right of Distribution (Article 70)

(3) Right of Rental (Article 71)

(4) Right of Public Performance (Article 72)

(5) Right of Broadcasting (Article 73)

(6) Right of Interactive Transmission (Article 74)

- Remuneration for Performers

Originally, copyright or neighboring rights were exclusive, so it is legal to use the work after obtaining permission or transferring the right from the rights holder in advance. However, to prevent the user from playing a social role or creating physical complications by using the work after obtaining permission first, the Copyright Act allows a legal policy permitting the user to first use the work within the scope of the law and compensate the rights holder later. The following are the cases: Broadcasters, digital streaming service providers, and performance organizations are obligated to reimburse performers and phonogram producers for the use of commercial sound recordings.

(1) Remuneration by Broadcast Organizations to Performers (Article 75)

(2) Remuneration by Digital Sound Transmission Organizations to Performers (Article 76)

(3) Remuneration to Performers by Persons Doing Public Performance Using Commercial Phonograms (Article 76-2)

2. Rights of Phonogram Producers

- Property Rights

(1) Right of Reproduction (Article 78)

(2) Right of Distribution (Article 79)

(3) Right of Rental (Article 80)

(5) Right of Interactive Transmission (Article 81)

- Remuneration for Phonogram Producers

Phonogram producers also have a system whereby broadcasters previously use their commercial sound recordings for broadcasting and later compensate the phonogram producers. Broadcasters must reimburse both performers and phonogram producers instead of paying royalties. However, neither performers nor phonogram producers can negotiate or claim this compensation individually; they must do so collectively (Paragraph 3 of Article 75, Paragraph 2 of Article 82). This collective negotiation and payment of compensation to performers and phonogram producers by broadcasters, digital streaming service providers, and performing organizations for using commercial phonograms is called a “blanket license.”

(1) Remuneration to Phonogram Producers by Broadcast Organization (Article 82)

(2) Remuneration to Phonogram Producers by Digital Sound Transmission Organization (Article 83)

(3) Remuneration to Phonogram Producers by Persons Performing in Public Using Commercial Phonogram (Article 83-2)

3. Rights of Broadcast Organization

- Property Rights

(1) Right of Reproduction (Article 84)

(2) Right of Simultaneous Broadcasting (Article 85)

(3) Right of Public Performance (Article 85-2)

4. Term of Protection for Neighboring Right

Neighboring rights are protected for performers and phonogram producers for 70 years from the year following the first fixation of the performance or phonogram, and for broadcasters for 50 years from the year following the broadcast (Article 86).

To be continued in Part 7.

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