저작인접권자의 공연권 도입 여부에 대한 고찰 - 음반제작자를 중심으로

Introducing the right of public performance for the neighbouring rights owner - focusing on the phonogram producers -

&nbsp;&nbsp;In modern days, music is readily accessible to the public through broadcasting, public performance, advertisement and background music that it is now an essential part of our lives. As of the Hallyu fever and the expansion of the mobile contents market, the economic effect of the music industry is as great as that of other products. However for the long term development of the music industry, construction of a legal system satisfying the right owners, the music industry and the consumers is of vital importance.<BR>&nbsp;&nbsp;Unfortunately, the current copyright law of Korea is largely devoted in protecting the interests of the music industry and the consumers that it is less protective of the right owners. Especially with the phonogram producers, their rights are insufficiently protected in many ways. Although they are granted exclusive rights in terms of the reproduction and distribution of the primary usage of the phonograms, they don&quot;t have any form of exclusive right for its secondary use. Especially with such secondary use of the phonograms, the phonogram producers only posses the right to compensation for the broadcasting of the phonograms but are guaranteed neither the exclusive right nor the right to compensation for public performances.<BR>&nbsp;&nbsp;Keeping these problems in mind, this article will demonstrate the possible amendments in tackling such legal restraints which will enable a more effective protection of the phonogram producers&quot; rights.<BR>&nbsp;&nbsp;Firstly, there are still great limitations to the phonogram producers in exercising the right to compensation for broadcasting as this right is only granted to broadcasts using phonograms which were published for commercial purposes. Such use also requires “directness” in the sense that the records must be “directly” played in broadcasting studios and not in public sites such as restaurants or clubs. Considering such problems, one must introduce exclusive broadcasting rights for the phonogram producers in areas where they cannot excercise their right to compensation.<BR>&nbsp;&nbsp;Secondly, as we have examined earlier, the public performance right or the right to compensation for the public performances must be introduced for the phonogram producers. Other countries such as Germany, where intellectual property rights have been developed since the early days, or Taiwan whose economic development is similar to that of Korea, have already been paying phonogram producers compensation for public performances. This demonstrates clearly the extent as to how grudge korea has been in protecting the phonogram producers and stresses the urgent need for legal implementations.<BR>&nbsp;&nbsp;Thirdly, the modern music industry is developing new ways of music utilization such as the digital audio transmissions. This is a new concept which cannot be covered by traditional conceptions such as “broadcasting” or “transmission”. As the internet broadcasting is now a major emerging market, it is important to introduce safeguard measures for the phonogram producers in order for them to participate in the profits from such digital audio transmissions.<BR>&nbsp;&nbsp;Last of all, the broadcasting performance right needs to be introduced for the neighbouring right owners. The term “broadcast performance right” is difficult to define in terms of “public performance”. This is because the term “public performance” is traditionally used in referring to live performances or acts of communication to the public of fixed materials that had already been broadcasted or publicly performed. Therefore, it cannot include the communications to the public of live broadcasting through radio or television in cafeterias or restaurants. It is vital that the broadcast performance right must be granted not just to the copyright owners but also to the neighbouring right owners.<BR>&nbsp;&nbsp;As we have examined in the above paragraphs, the method and the en