동시중계방송권 및 수신보조행위 법리에 관한 검토 :지상파 방송사와 케이블TV 방송사 사이의 재송신 분쟁을 중심으로

Abstract

This article addresses the following key legal issues in disputes on retransmission between cable TV companies (so-called ‘system operators’ in Korea (“SOs”)) and terrestrial broadcasting stations, that arose from (i) the interpretation of Article 78.3 of the Broadcasting Act – e.g., in the case of mandatory retransmission (“Must-Carry”), provisions of Article 83 of the Copyright Act on a right of simultaneous broadcasting shall not apply – and (ii) applicable criteria for the recognition of activities to assist reception of broadcast signals of terrestrial broadcasting programs. First, in relation to the interpretation of Article 78.3 of the Broadcasting Act, the district court ruled on the merits of the case mainly by interpreting Article 78.3 in a way that, in principle, the clause on a right of simultaneous broadcasting should apply in case of SOs’ simultaneous re-transmission of terrestrial broadcasting programs which are not subject to the Must-Carry obligation. However, although the appellate court also ruled on the merits of the case, it interpreted Article 78.3 in a different way, i.e., it may not be a ground on which the legality of SOs’ simultaneous retransmission that are not subject to the Must-Carry obligation is determined, nor a ground for exemption from the liability for copyright infringement in case of such simultaneous retransmission. However, upon the review of legislative history, it is more likely that Article 78.3 was introduced simply to resolve potential copyright infringement problems in performing the “Must- Carry” obligation, rather than to acknowledge the copyright infringement in case of “simultaneous retransmission within the licensed areas” other than “Must-Carry” programs. Thus, further in-depth review on this issue is needed. Secondly, in relation to applicable criteria for the recognition of “activities to assist reception of broadcast signals of terrestrial broadcasting programs”, while the legality of such activities was recognized in the judgments of both courts, the courts held that the retransmission in question does not fall under such activities in consideration of the management of reception equipment/facilities, alteration of broadcast signals, service usage fees borne by subscribers, costs and benefits generated from the allocation of home-shopping channels, and the like. However, it is doubtful whether the criteria used in the above judgment are essential to the determination of the said activities. Rather, it is reasonable to apply the following essential criteria: (1) whether the activity in question was chosen by viewers of terrestrial broadcasting programs, (2) whether as a result, the viewers may enjoy the programs as they were supposed to view by receiving relevant broadcast signals through (over the air) antenna, and the like. In addition, the courts might have more closely reviewed the U.S. Supreme Court’s approach on almost the same disputes in the U.S.A. (where CATV providers engaged in the same forms of simultaneous retransmission businesses as SOs in Korea), as well as whether or not, without encroaching of profits, such activities amount to a violation of a right of simultaneous broadcasting. Thus, in the future legislation concerning retransmission, it would be necessary to improve and supplement the current retransmission system in Korea through taking into account various factors, such as, impact on viewers, public responsibilities of terrestrial broadcasting stations, fair assessment of costs and benefits pertinent to retransmission, etc.