Jeo'jag'gweon最新文献

{"title":"A Study on Copyright Issues related to NFT (Non-Fungible Token)","authors":"Youngjin Yoon","doi":"10.30582/kdps.2023.36.3.85","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.3.85","url":null,"abstract":"This study examined the technical characteristics of NFT, such as the concept of NFT, its history, and the distinction between NFT and NFT contents (Chapter 2). And as a preliminary review to discuss the legal issues of NFT, the productibility and the copyrightibility of NFT and NFT contents were reviewed (Chapter 3). NFT includes NFT metadata and NFT content. Under the current law, the productibility of NFT metadata and NFT content is denied, but NFT metadata has a high possibility of scarcity, exclusive control, and independent trading, so it was argued that property law protection could be possible with future amendments to the law or changes in interpretation theory. Copyrightibility of NFT metadata will be denied, but it is determined that NFT content can be recognized as copyrightable according to its contents. Based on the discussion in Chapter 3, the copyright law issues raised by NFTs were reviewed (Chapter 4). First, we looked at NFT-related copyright dispute cases that are becoming a reality, and selected and examined representative cases of digital copyright infringement that are expected to have significant implications in NFT-related litigation, focusing on relatively recent cases. Based on the review of these cases, aspects of copyright infringement that are expected to occur during the transaction and creation of NFTs are analyzed and listed in detail from the objective and subjective perspectives. Specifically, the series of processes of creating and storing NFTs without the permission of the copyright holder is highly likely to include a commercial use process, and therefore may constitute infringement of Author’s Property Rights and Moral Rights depending on the method or content of use of NFT content. In addition, advertising and posting NFTs on NFT trading platforms appears to be an act of aiding and abetting the act of providing them to the public commercially and continuously because the NFTs contain a URI that links to NFT content that infringes copyright.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135081517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Implications of the Andy Warhol Foundation v. Goldsmith Ruling by the United States Supreme Court","authors":"Chang-Hwan Shin","doi":"10.30582/kdps.2023.36.3.47","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.3.47","url":null,"abstract":"The recent United States Supreme Court ruling in Andy Warhol Foundation v. Goldsmith (2023) has clarified the concept of fair use. The Supreme Court ruling can be summarized as follows: “In the United States Copyright Act, the first factor in determining fair use is the purpose and character of the use. Transformativeness is the degree to which the use has a different purpose and character from the original work. Transformativeness is evaluated by considering the two factors of ‘commercial character’ and ‘justification of use’. If transformativeness is found, it means that the first factor of fair use has been passed favorably. Additionally, for fair use to be recognized overall, especially in relation to the first factor of the purpose and character of use, it must be reviewed in the context of the specific use of the relevant case. In the case of specific use, if the purpose of the original work and the subsequent work are different, fair use may be established.” When compared to the Google ruling of the United States Supreme Court in 2021, there is a greater possibility that the justification of use related to compatibility, standards, and efficiency will be recognized in technical cases, but the justification of use of another's work is relatively less likely to be recognized in artistic cases where the individual expression of the artist is the main part. In this regard, it is also noteworthy that the distinction between ‘technical transformativeness’ and ‘artistic transformativenss’ may be regarded as established by recent US case laws.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135081686","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Copyright Law Issues Related to Investigating a Potential Infringement of Free and Open Source Computer Programs","authors":"Gi Bong Kang","doi":"10.30582/kdps.2023.36.3.5","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.3.5","url":null,"abstract":"Since access control technological protection measures fundamentally block access to copyrighted works, the user of the copyrighted work is prohibited from using the copyrighted work in any way, regardless of his or her will, outside of the scope of use set by the copyright owner. However, copyrighted works are used in various ways to shape the culture of our society. In particular, free and open source software (“FOSS”) contributes to the improvement and development of software-related technology and culture in our society by sharing the source code so that anyone can use i t. In addition, FOSS is currently developed not only as a means of information sharing, but also as a way to promote a company or expand its market share, and from the developer’s point of view, their reputation or market share is an important incentive.
 However, when a person who develops a computer program using FOSS uses technological protection measures for access control to protect his or her computer program, it may become difficult to investigate whether a particular computer program includes FOSS, and if so, whether the use of the program complies with applicable license terms. In this case, the social function or role of FOSS may be reduced or damaged.
 A sound and effective ecosystem for FOSS needs to be formed in Korea. Therefore, in order to ensure investigation activities to identify potential violations of the FOSS license and copyright infringement, it is necessary to stipulate exceptions that allow the circumvention of access control technological protection measures. However, it is necessary to properly configure the requirements for exceptions in order to minimize problems that may arise accordingly.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135081520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on Problems and Overseas Cases of the Amendment to the Copyright Act on the Additional Remuneration Rights of Audio Visual Authors: Focusing on Commercial, Economic and Legal Perspectives","authors":"Bo Young Son","doi":"10.30582/kdps.2023.36.3.179","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.3.179","url":null,"abstract":"Recently, a number of Korean content, such as <Squid Game> and <Extraordinary Attorney Woo>, are not only loved in Korea but also around the world. Behind this remarkable growth is the deep dedication and efforts of domestic and international industry stakeholders. As number of domestic content garner success around the world, domestic and global production companies are strengthening their investment in Korean content. It means that a virtuous cycle structure in which the success of one content leads to another investment has been established. Currently, Korea’s content industry is cruising toward its golden age beyond the growth period.&#x0D; On the other hand, as the number of successful content increase, there is growing voice among audiovisual creators, including directors and screenwriters, that they are not adequately compensated for the profits generated by their success. In response to these concerns, several amendments to the Copyright Act were proposed to grant additional remuneration rights to Authors, and discussions are still ongoing. However, there are doubts about whether this amendment focuses only on the enhancing the benefits of the Authors and lacks consideration for commercial, economic, and legal aspects. First, from the commercial and economic point of view, it seems that the factors that must be considered essential for institutional change, such as disharmony with industrial characteristics, infringement on freedom of contract, and reduction in investment, have not been reviewed. Second, from a legal point of view, it seems that foreign cases and constitutional and legislative considerations were not properly reviewed.&#x0D; The audiovisual industry involves multiple stakeholders, and our Copyright Act has established Special Cases Concerning Cinematographic Works provision to achieve the ultimate goal of ‘creating culture’ and to organize the complicated relationship between stakeholders. It took decades for the industry ecosystem to settle into a virtuous cycle system. For these reasons, many stakeholders are concerned that Korean content industry will not reach its golden ages due to the amendment to the Copyright Act. currently pending in the National Assembly.&#x0D; Therefore, this aims to examine the commercial, economic, and legal considerations of the amendment to the Copyright Act. Like any other business, the content industry may experience growing pains as the market grows. While it is important to establish a reasonable system that may coexist with all stakeholders, legislation may not be the means and will present a reasonable alternative to the amendment to the Copyright Act.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135081680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"French Copyright Contract Law Review","authors":"Daeseung Yang","doi":"10.30582/kdps.2023.36.3.207","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.3.207","url":null,"abstract":"Contracts for use of copyrighted works mainly appear in the form of transfer of rights or license to use. However, the concept of ‘Cession’ under French copyright law is not understood to be the same as the concept of ‘transfer’ under Korean copyright law. ‘Cession’ can be seen as transferring only the right to use, excluding the right to profit or disposal. In this respect, ‘Cession’ is closer to the concept of ‘Concession’, which is understood as the concept of ‘permission to use.’ Meanwhile, French copyright law interprets the contents of the copyright agreement related to ‘Cession’ very strictly. It stipulates that comprehensive transfer of rights to future works is invalid, and compensation to authors is based on proportional compensation, and fixed compensation is recognized only as an exception. Even in the case of fixed compensation, if the loss suffered by the author is more than 7/12 due to profit imbalance or failure to sufficiently predict the profits to be received from the work at the time of contract, a change in compensation may be requested. In addition, in a copyright contract, not only must each right that is the subject of the contract be individually stated, but also the area of use of the rights that are the subject of the contract in the copyright contract must be specifically determined according to the scope, purpose, location and period. In this respect, it can be seen that French copyright contract-related regulations do not entirely entrust the contractual relationship between authors and users to the principles of private autonomy or freedom of contract. The principles of the French usage contract system place greater emphasis on the principles of contractual fairness, focusing on protecting the weak author. The contents of the provisions related to copyright use contracts under the French Copyright Act can be used as important basic data not only in understanding the content and purpose of the French Copyright Act, but also in reflecting on our copyright use contract system. In particular, this study has significant implications in relation to legislation to create a fair copyright contract culture surrounding the amendment to the special provisions for video works that has recently b een d iscussed in Korea.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"219 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135082505","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Changes and Implications of the Rights of Music Performers in France: Focusing on Transmission Rights and Remuneration","authors":"Won Lee","doi":"10.30582/kdps.2023.36.3.241","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.3.241","url":null,"abstract":"This study examined how the legal rights of French music performers have changed, especially in the recent series of legal and institutional innovations related to the French music industry, and what their implications are. French performers formed two groups in the 1950s and have been negotiating with record producers to protect and strengthen their rights. In France, the legal status of performers was established when neighboring rights were recognized in 1985. With the passage of the EU Copyright Directive in 2019, a legal order was enacted to reflect this directive in French domestic law in 2021. Based on this order, music performers in France were promised unprecedented minimum remuneration from streaming. It was also guaranteed the right to request transparent information disclosure from users and the right to request additional remuneration after transfer. The implications of this study are as follows. French performers have strengthened their rights to this day through collective solidarity. This is the background of improved amendments to performance rights in the European Union guidelines or French copyright law. The remuneration is an absolutely important part of the income of French music performers. In other words, the right to claim remuneration is making a substantial contribution to performers with relatively weak rights. In a highly digital society, the right to transmission has become the most important exclusive right. The fee rate for music performers’ transmission rights has long remained at the lowest level. The French agreement reached in 2022 dramatically improved the unfairness of streaming fees for music performers.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135082002","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reasonable Compensation for Creative Labor: International Practices and Precedents of Audiovisual Author’s Unwaivable Right to Remuneration","authors":"Kyung Sin Park","doi":"10.30582/kdps.2023.36.3.141","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.3.141","url":null,"abstract":"For copyright to achieve its original purpose, creators should be entitled to fruits of successful exploitation of their work after they license or transfer their rights. Due to imbalance of bargaining power, creators often sign away their rights to compensation. To respond that, we need to think about legislating an unwaivable right. Its operation resembles the fee collecting systems already set up for television writers and actors in Korea and for music writers and performers around the world, which originate from historical reasons, collective power, or the statutory compensation for performing music recordings. The last example is enshrined by Rome Convention and WPPT, and its modus operandi can be easily applied to audiovisual recordings. When the 2016 Beijing treaty does exactly that for audiovisual performers (i.e., actors and actresses) and where digital technology makes collection of fees for various ways of communicating the audiovisual works to the public, the time is ripe to seriously consider the audiovisual authors’ unwaivable right to remuneration extending beyond performers and inclusive of directors and script writers. In doing so, it will be desirable to take the form of compulsory licensing for copyright limitation so that the right to remuneration exists even when the creators have not made licensing or transfer. Collective management societies’ collecting activities may be more efficient than filing lawsuits for copyright infringement.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135082001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Data and Fair use","authors":"Yun-Myung Kim","doi":"10.30582/kdps.2023.36.1.5","DOIUrl":"https://doi.org/10.30582/kdps.2023.36.1.5","url":null,"abstract":"Data collection and use are the beginning and end of machine learning. Looking at ChatGPT, data is making machines comparable to human capabilities. Commercial purposes are not naturally rejected in the judgment of fair use of the process of producing or securing data for system learning. The UK, Germany, and the EU are also introducing copyright restrictions for data mining for non-profit purposes such as research studies, and Japan is more active. Japan’s active legislation is the reason why there are no comprehensive fair use regulations like Korea and the United States, but it shows its willingness to lead the artificial intelligence industry. In 2020, a revision to the Copyright Act was proposed in Korea to introduce restrictions for information analysis. It will be able to increase the predictability for operators. However, the legislation of the amendment is expected to be opposed by the right holder and may take time. Therefore, it was examined whether machine learning such as data crawling and TDM corresponds to fair use through fair use under the current copyright law. In conclusion, it was considered that it may correspond to fair use, citing that it is different from human use behavior. However, it is questionable whether it is reasonable to attribute all exclusive negligence to the business operator by using the works of others according to fair use. The reason why the compensation system for profits earned by operators through the use of machine works generated by TDM or machine learning cannot be excluded from the possibility of serious consequences for a fair competitive environment.","PeriodicalId":475540,"journal":{"name":"Jeo'jag'gweon","volume":"77 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135375007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}