케이블방송의 지상파재송신 금지 판결의 민법상 쟁점

Review of Court decision on Retransmission of Terrestrial Broadcasting from Cable TV in terms of “Implicit Consent and “Abuse of Right .

Court banned the retransmission of the terrestrial broadcasting from cable TV on Sep 8th, 2010. By virtue of its ownership of the essential method for cable speech, a cable operator can prevent its subscriber from obtaining access to programming it chooses to exclude. Cable TV is now considering to avoid violating the court ruling by restriciting the commercial ad on terrestrial broadcasting In this script, review is mainly focused on the theory of “implicit consent and abuse of right . A determination of whether an electronic function constituted a copyright performance should depend on how much did the cable TV do to bring about the viewing and hearing of a copyrighted work. By extending the range of viewability of a broadcasting program, cable TV system thus do not interfere in any tradition sense with the copyright holder. Even from the point of view of the copyright holders, market changes will mean that the compensation a broadcaster will be willing to pay for the use of copyrighted material will be calculated on the basis of size of the direct broadcast market augmented by the size of cable TV market. Therefore, court decision on the retransmission right should be reviewed under copyright holders economical needs and the market viewpoint.