Joseph Hwang
When a musical composition is created, the author of the music owns the copyright. Copyright is divided into two main categories: property rights and moral rights. Moral rights are exclusive, referred to as inalienable rights, which cannot be transferred to a third party. Copyright law classifies music composers, lyricists, arrangers as music authors, and singers, performers, and phonogram producers as neighboring rights holders. Neighboring rights will be explained in the next article.
1. Author's Property Rights
A music copyright holder has the following property rights.
(1) Right of Reproduction (Article 16)
(2) Right of Public Performance (Article 17)
(3) Right of Public Transmission (Article 18)
(4) Right of Exhibition (Article 19)
(5) Right of Distribution (Article 20)
(6) Right of Rental (Article 21)
(7) Right of Production of Derivative Works (Article 22)
Of the above rights, the Right of Exhibition is unlikely to apply to music composers, and the Right of Rental is not an important right for music composers because the CD or DVD rental industry has almost disappeared.
Instead, the Right of Public Transmission has grown in importance, along with the Right of Reproduction and the Right of Production of Derivative Works. Transmission is a concept that emerged because of the Internet network. Before that, transmission was replaced by broadcasting. It used to refer to wired or wireless communication by sending electromagnetic signals to people at a distance, with the advent of Internet communication, it became necessary to distinguish between the two. In copyright law, broadcasting and transmission are distinguished by simultaneity and bidirectionality. When data is sent and received unilaterally, simultaneously, and only at certain times, it is called broadcasting. If it is sent and received whenever the recipient wishes, and the signal request is bidirectional, meaning that both the sender and the recipient can send and receive the signal, it is called transmission. The distinction was made because of the physical and electromagnetic nature of transmission. Unlike broadcasting, transmission leaves a “cash memory” on the recipient's device, resulting in a temporary copy of the data. The “phenomenon of reproduction” is at the functional core of copyright law. Therefore, transmission is recognized as a right of a different nature than broadcasting. It is the transmission rights that expand the scope of copyright law's application to digital reproduction.
The Right of Production of Derivative Works is a right that has become more important because digital reproduction has become ubiquitous. Digital technology has made reproduction convenient and ubiquitous and has technologically collapsed those restrictions on the reproduction of original works. With a computer and related software, users can easily reproduce and edit original works, and the rights of the original copyright holders are frequently infringed. Derivative works are protected as works, which are recognized independent of the original and do not affect the author's rights of the original work (Article 5). The same is true for Compilation Works (Article 6).
Korean Copyright Act
Article 16 (Right of Reproduction)
The author shall have the right to reproduce his or her work.
Article 17 (Right of Public Performance)
The author shall have the right to perform his or her work publicly.
Article 18 (Right of Public Transmission)
The author shall have the right to transmit his or her work in public.
Article 19 (Right of Exhibition)
The author shall have the right to exhibit the original or copy of his or her work of art, etc.
Article 20 (Right of Distribution)
The author shall have the right to distribute the original or copy of his or her work: Provided, That if the original or copy of the work has been offered to a deal by means of sale, etc. with permission of the relevant holder of author’s economic rights, the same shall not apply. <Amended on Apr. 22, 2009>
Article 21 (Right of Rental)
Notwithstanding the proviso of Article 20, the author shall have the right to authorize the commercial rental of phonograms made public (hereinafter referred to as commercial phonograms") or programs made public for pursuit of profit. <Amended by Apr. 22, 2009; Mar. 22, 2016>
Article 22 (Right of Production of Derivative Works)
The author shall have the right to produce and use a derivative work based on his or her original work.
2. Author’s Moral Right
Music authors have moral rights, which are as follows.
(1) Right to Make Public
(2) Right of Paternity
(3) Right of Integrity
Violating an author's moral rights can result in criminal penalties for the offender. Of course, if the offense is confirmed, the offender may also be required to pay compensation civilly. Among the above three rights, the Right of Public Transmission and the Right of Production of Derivative Works, which are copyright property rights, are easily violated due to the digital environment, and the Right of Integrity, which is an author's personality right, stands out as a highly significant right. When the original work is transformed or edited, the right of integrity is affected immediately. Therefore, when making remake music, the author remake music must be granted the right of integrity from the original author to avoid infringement.
Korean Copyright Act
Article 11 (Right to Make Public)
(1) The author shall have the right to decide whether or not to make his or her work public.
(2) If the author has transferred by assignment his or her economic right on a work which is not yet made public pursuant to Article 45, authorized its use pursuant to Article 46, or established the exclusive right of publication pursuant to Article 57 or publication rights pursuant to Article 63, he or she shall be presumed to have given the other party his or her consent to make it public. <Amended on Apr. 22, 2009; Dec. 2, 2011>
(3) If the author has transferred by assignment the original of his or her work of art, architectural work or photographic work (hereinafter referred to as "work of art, etc.") which has not been made public, he or she shall be presumed to have given the other party his or her consent to make it public in the manner of exhibition.
(4) If a derivative work or compilation work produced with the consent of the author has been made public, its original shall be also considered to have been made public.
(5) Where the author donates his or her pieces of unpublished work, etc. to libraries, etc. under Article 31, it shall be presumed that he or she consents to making them public at the time of his or her donation unless otherwise expressly stated. <Newly Inserted on Dec. 2, 2011; Aug. 8, 2023>
Article 12 (Right of Paternity)
(1) The author shall have the right to indicate his or her real name or pseudonym on the original or copy of his or her work, or on the medium of publication by which his or her work is made public.
(2) Unless otherwise expressly stated by the author, the person using his or her work shall indicate the author’s name in accordance with the author’s manner of indicating his or her real name or pseudonym: Provided, That the same shall not apply where deemed unavoidable in the light of the nature of a work as well as the purpose and manner of its use.
Article 13 (Right of Integrity)
(1) The author shall have a right to maintain the integrity of the content, form and title of his or her work.
(2) No author shall raise an objection to a modification falling under any of the following subparagraphs: Provided, That the same shall not apply to the modifications of substantial contents: <Amended on Apr. 22, 2009; Aug. 8, 2023>
1. In cases of using a work pursuant to Article 25, the modification of expression within the limit as deemed unavoidable for the purpose of school education;
2. Extension, rebuilding or other modifications of an architectural structure;
3. Modification within the necessary limit to enable a program used only on a specific computer to be run on other computers;
4. Modification within the necessary limit to use a program more effectively for a specific computer;
5. Other modifications within the limit as deemed unavoidable in the light of the nature of a work as well as the purpose and manner of its use.
To be continued in Part 6.
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
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