우리나라 지상파방송 재송신을 둘러싼 법적 쟁점과 해법 모색

Abstract

This paper talks about the conflict in retransmission of the terrestrial broadcasts (hereinafter “TB”) - KBS 2TV, MBC and SBS -, the hottest issue in the broadcasting industry in Korea. The retransmission of terrestrial broadcasts is a method to access terrestrial broadcasting programs that has emerged as new media platforms alternative to those free over-the-air broadcasts entered into the market. It is a legal method provided for in Article 78 of the Broadcasting Act. The conflict in the retransmission first appeared in 2002 when a satellite broadcasting system started its broadcasting across the country. It again appeared in 2008 when IPTV operators launched its business. Finally, but not lastly, the escalating conflict expanded to cable TVs (also known as system operator, SO, thereinafter “SO”). Under the current retransmission regime, SOs are subject to a legal obligation to simultaneously retransmit KBS TV1 (Korean Broadcasting System TV1) and EBS (Education Broadcasting System) channels to give viewers in Korea access to various public programs. This does not involve any fees or charges and the Broadcasting Act excludes the applicability of the Copyright Act in this case. There are other three major TB channels, namely KBS 2TV, MBC and SBS, and their programs are so-called the killer contents. Obviously, they are not subject to the obligatory retransmission regime. Any newly entered platform operators must secure the access to the killer-contents in order to survive in the tough broadcasting market over which these three TBs have quite significant market power. As early as 1960’s, the TBs and SOs have maintained a peaceful relationship, as their interests were met; TBs have the de jure and de faco obligations, respectively, to improve the quality and systems of receiving broadcasting signals all over the country, and desires to distribute their contents as many viewers as possible in order to gain profits from advertizing business, while SOs have the lined networks across the country and needed contents to entice subscribers. TBs acquiesced SOs’s retransmission of their channels without their permission and payment. However, the situations now have changed due to digitalization of broadcasting environment and emergence of new media platforms. As of 2007, TBs started to ask retransmission fee from SOs. SOs, of course, did not respond to this sudden request. TBs lodged a lawsuit for copyright infringement and applied for several interlocutory motions against 5 major SOs established in Seoul. Courts all found that TBs have and enjoy copyrights on their programs and their right, namely the right to simultaneously relay-broadcast had been in fact infringed 윤혜선 - 우리나라 지상파방송 재송신을 둘러싼 법적 쟁점과 해법 모색51 by the SOs unlawful retransmission, and ordered them to stop retransmitting TBs’ digital programs to new subscribers. Now they are under negotiating the retransmission fees but the way to reach an agreement seems too far. Because of this hardened relationship between TBs and SOs, the viewers right to access TBs programs, which are perceived as a universal service, has been jeopardized and is under a threat as SOs have not seldomly stopped retransmitting TBs channels (6 times between 2011-2012). The regulator is not effective in resolving this issue. In the meantime, the National Assembly and regulators tried to improve the situation by, among others, (i) expanding the scope of the current regime by subjecting the KBS 2TV and MBC to the Article 78 obligatory retransmission regime, (ii) establishing principles and rules to compute retransmission fees, and lastly, not to least (iii) to establish a special dispute resolution system for this specific regime. In this paper the author first explains the retransmission regime under the Broadcasting Act, and next re-examines the legal issues surrounding the TB retransmission system and analyzes the legislature and regulator’s responsive amendments to the Act, and lastly proposes new ideas to improve or change major shortcomings of the current system.