A task of copyright law for the protection of creative labor

Abstract

If the paradoxical reality that copyright system which is supposed to protect individual creators serves to exploit creative labor is left unattended, the copyright system is hard to sustain. In order to alleviate the exploitation of creative labor, we need to revise the existing Copyright Act to codify measures warranting fairness rather than freedom in copyright contract.

Amendment of Copyright Act proposed in this article includes both ex ante and ex post interventions in a copyright contract. The ex ante intervention includes: a formality requirement mandating that a copyright transfer be made in writing and specify every bundle of transferred right; an interpretation rule of copyright contract in favor of an author; a ban of a bulk assignment of future works; and a prohibition of copyright transfer without paying a corresponding remuneration to an author. The proposed ex post statutory intervention includes: an introduction of a termination right for a contract on future works or unknown type of use; an author’s right to claim a fair remuneration against transferees and licensees; and an obligation of transparency under which an author may request reporting of use of copyright works and resulting revenues.

These proposals are borrowed from legislation of Europe where the copyright system was born. The European legislation had provisions for creators who were in a weak position and were not properly remunerated while buying out their works. The reversionary right contained in the Statute of Anne and termination right in the U.S. Copyright Act are typical examples of disregarding private autonomy in copyright contract. Jurisdictions of continental law traditions have enacted several binding rules that actively take into account the reality that copyright contracts are not concluded by the creator’s free will. These provisions are to be adapted to our reality so that copyright system is streamlined and creators are no longer exploited under the name of “freedom”.

This article was published in a journal of Korean Society for Media Law, Ethics and Policy Research, Vol. 18, No. 3 in 2019, and downloadable (the full text is in Korean).