영상저작물의 이용활성화와실연자의 보상청구권

Abstract

The Special Provisions concerning cinematographic works of Article 100 of theCopyright Act premises that film-producers and performers can free to decide onwhat rights to transfer to what extent, to grant permission to use, and whatconditions under which they will be attached. In other words, this provisionpresupposes that both parties can negotiate on a equal basis in economic and legalterms. However, with the exception of some star performers, It is difficult for performerswho are directly connected to the living to participate in the production of videoworks to negotiate in parity with the film-producer. Therefore, broadcastingperformers are receiving extra fee for rebroadcasting and transmission by concludinga special agreement with the broadcasting company through ‘Korea BroadcastingPerformer’s Rights Association’. Nevertheless, the special agreement is a contractbased on a voluntary agreement of the parties, and there is no obligation to concludea special contract by law, so it is not possible to conclude a contract unless theother party is in negotiation. Whereas, Most of the European countries have already been aware of this problemand are legally obliged to pay remuneration to video producers. In Korea, anamendment to the Copyright Act which guarantees the remuneration to Performerswas passed to the National Assembly in 2011, However, due to the political situationat the time, it was abandoned the expiration of the term without even discussingproperly.In order to produce high-quality broadcasts for reasons such as the spread ofKorean wave, a sound and continuous broadcasting production environment isrequired. And then, It is considered that the early legislation for ensuring the rightsof performers is necessary. If the remuneration to Performers were to be legislated,regarding the qualifications for the ‘other party’ of the claim, it should be consideredto include business operators who are actual users of the content, rather than limitingto broadcasters, who are directly under contract with the performers, for the purposeof solving the inconvenience of claims for remuneration and increasing itseffectiveness.