방송사업자의 방송프로그램 등에 대한 독점적 권리 행사와 공법적 규제

Abstract

With the technological advancement and convergence, broadcasting platforms as well as their usage have become diversified and the competition in the broadcasting market have become intense. The increase in the diversified broadcast platform has brought about changes to the supply and demand structure for broadcasting content and broadcasting programs in the upstream market and changes to the environment in the downstream market whereby the viewers are now able to choose from a more diversified set of options and have become more influential. Consequently, the value of broadcasting content including broadcasting channels or programs is expected to increase. In particular, the broadcasting platform businesses’ demand for killer content and killer channels that will capture the attention of the viewers are expected to further increase. Against this backdrop, how much monopolistic, exclusive rights based on copyright should the broadcasting content providers be allowed to exercise? Although, the majority of the PPs, except for a few terrestrial program providers (“PPs”) and a few PPs owned by the conglomerates, are in an inferior position relative to the broadcasting platform businesses, it is highly likely that there will be disputes involving certain broadcasting channels or programs between the PPs in the context of individual transactional relationships. In addition, given the intensifying disputes between the terrestrial PPs and PPs providing pay channels relating to the re-transmission of broadcasting channels, there is a need to continue such discussions in furtherance of balanced exercise of copyrights and to attain public values such as the protection of public interests, common good and viewers. If we let broadcasting content providers and broadcasting platform businesses to resolve their issues pertaining to their respective rights through independent private settlements, it is clear that the rights of the broadcasting content providers will be protected even further since they can independently decide whether to provide or maintain their content based on their copyright. However, since we cannot overlook the possibility that certain broadcasting content providers will arbitrarily and exclusively exercise their rights, if the broadcasting market allows for such kind of behavior, there is a possibility that fair competition and resulting values protected by public laws such as increase in the viewers’ benefits (the Monopoly Regulation and Fair Trade Act, “MRFTA”), and the protection of public interests, common good and viewers’ rights (the Broadcasting Act) could be harmed. Therefore, independent from inducing the broadcasting content providers to contribute to the culture creation based on sufficient protection through copyright, we will have to adequately protect fair competition, smooth provision of broadcasting services and the right of the viewers through balanced law enforcement based on balance between public laws including the Copyright Act, the Broadcasting Act, and the MRFTA.