지상파재송신 금지 판결의 방송법상 쟁점 - 서울중앙지방법원 2009가합132731판결에 대한 검토 -

Abstract

For the must-carry provisions and cable TV's retransmission right issue. 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. A cable operator can thus silence the voice of competing speakers with ease when it comes to the interpretation of Section 70 (3) of the Broadcast Act (the must-carry clause of public and religious signals)At issue in this case is the limited question of whether cable TV transmission of distant signals constitutes a performance under the Copyright law. 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