Copyright Contract Research Articles

프랑스 저작권 계약법 소고

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.

MUАLLIFLIK HUQUQIDА MULKIY HUQUQLАRNI JАMOАVIY BOSHQАRISH TASHKILIY-HUQUQIY SHAKLINING FUQАROLIK-HUQUQIY TАHLILI

Since a collective rights management organization is formed directly by right holders and acts within the framework of powers received from them under the contract, it can be said that the activities of such an organization are membership-based. In this case, we say that the association of entities to form a legal entity for the protection of copyright is expressed in the management of these rights on a collective basis. Membership of rights holders in the organization is one of the important elements characterizing collective management organization. These reforms are related to issues such as ensuring the rights and legal interests of authors, putting an end to the unauthorized use of copyrighted works, fair payment of copyrights and strengthening accountability measures for copyright violations. In addition, a large number of cases of unauthorized use of author’s works and non-fair payment of copyright to authors indicate the growing need to develop the institution of collective management of author’s property rights. In our country, there are a number of issues that are waiting for their solution, and the regulation of copyright-legal relations, in particular, collective management of copyrights in its protection, and the research of the processes related to the copyright contract are urgent tasks. In addition, the article focuses on some current problems related to the improvement of this institution, international standards of copyright protection and comparative legal analysis of national legislation, as well as the opinions of scientists from Uzbekistan and other countries. Proposals and recommendations of scientific and practical importance for the development of copyright were put forward.

Implementation of the Principle of Dualism in Intellectual Property Law on the Example of the Copyright Contract

The relevance of the conducted research is due to the presence of a number of factual contradictions between the position of the courts in considering the issues of exclusive rights to works created during the execution under the contract of copyright with the rules of law contained in the civil legislation of the Russian Federation. The proposed issues are examined from the point of view of copyright and civil law, legal acts of foreign countries, judicial practice of the Russian Federation and foreign courts. The analysis of examples from judicial practice is given as a substantiation of legislative consolidation of the principle. This article reveals the author's view of the principle of duality of intellectual property law as an independent principle of a sub-branch of civil law and its implementation in the contract of copyright. Principles of law are defined by the author as its guiding principles that define the rules of law in the system of legal regulation, its content and direction. The purpose of the study is determined by the title and content of the work: the essential characteristics of the principle of duality of intellectual property rights, including the implementation of contractual relations in the performance of the author's order are considered. The totality of general scientific, special legal methods of knowledge is used: thanks to the analysis and synthesis the approaches to the proposed topic are generalized and conclusions are made. The principle of duality of intellectual property is considered as a fundamental idea of law, neglecting the account of which entails a violation of rights and freedoms and has legal consequences. Recommendations on the legislative consolidation of the mandatory written form of the copyright contract and the contract of alienation of exclusive rights in its continuation are given.

On the Validity of the Clause of Unknown Utilization of Works in Copyright Contract

On the Validity of the Clause of Unknown Utilization of Works in Copyright Contract

In It for the Money? Academic Publishing, Open Access and the Authors’ Claim to Self-Determination in Private International Law

Abstract Open access research platforms are increasingly becoming the target of academic publishers claiming copyright infringement. Applicable law considerations are pivotal in such circumstances. The law governing the initial publishing agreement decides, ultimately, the extent to which rights have been transferred and the degree to which courts can exercise judicial control. Academic publishing differs significantly from standard copyright contracts. Academic authors customarily remain unremunerated and are expected to transfer all rights on an exclusive basis. Exclusivity thus eradicates the proliferation of open access platforms altogether. The article discusses the most relevant concerns that arise in private international contract law under the Rome I Regulation as a matter of material justice. German substantive copyright contract law and the general principles affording protection to authors underpinning it, most importantly as regards the fundamental principle of equitable remuneration and its limits. The article dismisses the conventional approach as regards both contractual choices of law and the closest connection analysis and proposes, based on more subtle considerations of material justice as a relevant factor in modern EU private international law, the application of special conflict rules so as to alleviate the problematic effects of uninhibited contractual freedom of contract, as a mechanism to avoid the designation of, particularly, a common law copyright jurisdiction imposed by way of predetermined terms governing the agreement. The article demonstrates, ultimately, that an author’s claims to self-determination must outweigh the commercial interests of publishers, inadvertently providing open access platforms with legal certainty and freedom to republish.

THE APPLICABLE LAW TO THE BASIS OF THE COPYRIGHT CONTRACT WITHIN THE FRAMEWORK OF PIPL No. 5718

Milletlerarası özel hukuk kapsamında yer alan kanunlar ihtilâfı kuralları, yabancı unsurlu uyuşmazlıklarda hangi ülke hukukunun uygulanacağını belirler. Türk milletlerarası özel hukukunda bu düzenlemelere 5718 sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun’da (MÖHUK) yer verilmiştir. Yabancı unsurlu telif hakkına ilişkin sözleşmenin esasına uygulanacak hukukun tespiti ise MÖHUK m. 28 ile gerçekleştirilir. Bu madde, hem fikrî hakların devrine ilişkin sözleşmeleri hem de bu hakların kullanımının devrine ilişkin sözleşmeleri kapsamına almakta; sübjektif ve objektif bağlama kurallarını içermektedir. Telif hakkına ilişkin sözleşmenin esasına uygulanacak hukuku MÖHUK m. 28’e göre tespit ederken bazı sorunlarla karşılaşılmaktadır. Çalışmada bu sorunlar ve çözümleri hakkında bilgi verilmiştir.

블록체인 기술을 활용한 저작권계약 관리 방안에 관한 연구 : 음악저작권 중심으로 블록체인 기반 저작권 계약

In this study, the word "the era of the fourth industrial revolution such as the Internet of Things, artificial intelligence, big data, and blockchain" is emerging as a hot topic. The world is changing its content service platform throughout the industry due to the emergence of smart devices, the development of new devices, and the rapid development of major technologies following changes in the digital environment amid rapid paradigm change. As large companies such as Disney, led by Netflix in the U.S., entered the platform business, the future era eventually became an era where only companies that own both content and platform survive. Given that Netflix"s 2020 sales have achieved 415.5 billion won due to restrictions on people"s activities in the fendemic situation caused by COVID-19, it can be seen that the expansion of content consumption through the platform is rapidly expanding. Distribution of digital content takes place through contracts between copyright holders, performers, agencies, distributors, and services. Users of music are purchasing music using the services of distribution service providers, and the distribution of music revenue generated is distributed to agencies such as copyright holders, performers, and record producers through music distributors and copyright trust organizations. However, as problems such as copyright contracts and omission and delay of settlement of copyright fees arise in the process of digital music distribution contracts, the blockchain-based digital music distribution contract system is suggested as an alternative.

The Interpretation of Copyright Contracts and Recent Trends in Legislation

최근 소위 ‘구름빵’ 사건으로 촉발된 창작자의 권리구제 수단 확보를 위한 움직임은, 올해 초 발의된 저작권법 전부개정법률안에 ‘추가보상청구’와 관련된 내용을 포함하기에 이른다. 개정의 취지는 저작권 산업의 성장과 함께 창작자와 이용자 사이에 계약상 지위의 불균형에 따른 불공정이 발생하는 사례가 늘어감에 따라, 그로 인한 문제점을 최소화하고 창작자와 이용자 사이의 공정한 수익 분배 등 저작권 계약의 균형을 찾고자 하는 것에 있었다. 비교적 근래에 들어서야 실천적이고도 구체적인 논의가 시작되긴 했지만, 저작권 계약의 불공정성 및 그에 관한 당사자간의 다툼은 오래 전부터 이어져 왔다고 할 수 있다. 저작권 계약과 관련한 판례들을 비롯해 창작자의 권리를 보장하고자 하는 입법적 시도들 또한 지속적으로 있어왔다. 이에 본고에서는 저작권 계약과 관련된 사례로서 학계에서 깊이있게 다루어지지 않은 판례(99다72989)에 대한 평석을 중심으로, 최근의 저작권 계약과 관련한 동향들을 개관하고 추가적인 개정방향에 관해 고찰하였다. 해당 판례에서 명시하고 있지는 않으나 추단 가능한 법률행위 해석을 통해 저작자로서의 주장의 당부를 살펴봄과 동시에, 입법에 의한 창작자 지위 보호의 방향성에 관해 종합적으로 검토해보고자 하였다. 저작권 계약관계에 있어서 당사자간 지위 및 수익의 불균형을 계약 내용의 해석이나 당사자 합의에 기대어 해결하고자 하는 시도는 임의적이고 즉흥적이며 불충분할 수 밖에 없다. 궁극적으로 창작자 보호라는 문제의 해결을 위해서는 입법에 의한 개정방안을 검토할 수 밖에 없으며, 최근 들어서야 관련 이슈들을 기화로 해서 저작자의 추가보상청구와 관련한 규정이 저작권법 개정안에 반영되는 등 구체적인 법제도 개선을 위한 움직임이 일어나고 있음을 확인할 수 있다. 저작권 계약의 공정성을 담보하기 위한 방안은 일의적으로 규율하기 어려우며, 대등한 당사자 지위에 근거한 자유로운 법률관계의 형성을 위해서는 직접 계약의 공정성을 확보하는 측면과 함께 사적자치의 원칙을 고려한 다각적인 방안의 모색이 필요하다. 따라서 저작권 계약관계에 있어서의 창작자 지위 확보 및 권리 보호를 위해서는 추가보상청구 등에 관한 규정의 입법에 그치지 않고 저작권법 기타 법령의 개정을 통한 입법적 개선방안이 향후에도 지속적으로 논의되어야만 할 것이다.

극장과 VOD 흥행에서 홀드백을 포함한 영화 흥행 요인의 영향

Research on movie revenue has been divided into analysis of traditional box-office and studies on online market such as VOD, which have recently emerged. However, the commercial success of a particular movie consists of the box-office revenue and the secondary market performance including VOD. The box-office and VOD markets are connected by holdback, which is the time difference of movie and VOD release, and hence the structured relationship should be considered. In this study, a path analysis model was established and analyzed in order to compare the effects of various factors for the box-office revenue and VOD downloads including the direct and indirect effects of holdback. As a result of an empirical analysis of 237 movies released from November 2018 to October 2019, the factors that mainly influence the box-office success of a movie are marketing and distribution characteristics such as expert ratings and the number of screens, and those for VOD success are creative characteristics such as movie rating and star power. In terms of genre, it was found that drama is advantageous for box-office and action genre for VOD. It was confirmed that holdback tends to directly or indirectly increase box-office revenue and also decrease VOD downloads. The results of this study can have various implications for effective operation strategies and additional copyright contracts including holdbacks for film producers, distributors, and other secondary market stakeholders.

Stanislávski: sem censura nem cortes

O artigo traça um panorama histórico e biográfico das últimas décadas de vida de Constantin Stanislávski para compreender em que medida sua imagem e a sua obra foram construídas, manipuladas e até modificadas, dentro e fora da Rússia. A professora Sharon Marie Carnicke resgata as complexidades e contradições às quais Stanislávski esteve submetido tanto na Rússia, frente ao regime de censura e propaganda materialista-dialética de Stalin, quanto nos Estados Unidos, através das turnês do Teatro de Arte de Moscou que promoveram o diretor no Ocidente mas, sobretudo, através do decisivo contrato editorial assinado com sua tradutora Elizabeth Hapgood.

Договор авторского заказа: особенности и правовая природа

Договор авторского заказа: особенности и правовая природа

Features of labour relations in institutional theatres in Serbia

The main goal of the paper is to investigate the forms of labor relations in institutional, subsidized theatres in Serbia. Given the social and economic crises, and today significant changes in the lifestyles of citizens of the world caused by the Corona virus pandemic, theatre institutions had to adapt to new market demands. Reduced production, inability to play large ensemble performances, problems in paying copyright contracts are some of the features of the work of theatre organizations. Having these turbulent circumstances, the subject of the paper should determine the influence of social circumstances on the formation of working relations in institutional theatres in Serbia. The paper will look at labor relations in the context of transitional cultural policy and the impact of the environment on defining the most optimal form of employment that should meet the needs of the state, city, municipality, as founders and financiers of the theatre organization, the needs of artists who strive for permanent employment that will provide them with existential security while providing them with an opportunity for artistic growth. By re-examining and analyzing the existing models of labor relations, the basic hypothesis we want to prove in the paper is that permanent employment and achieving permanent employment is the best solution for hiring artists in institutional theatre. In order to fulfill the set goals and prove the hypothesis, the paper will use theoretical research in the field of human resources management (Rahimic, Torrington, Hall, Taylor), labor law, cultural policy (Djukic), cultural studies (Klajic, Ristic, Djordjevic) as well as the case studies of form of employment in national theatres in the region. The paper also presents an empirical research that dealt with the impact the different forms of employment have on artists. The research shows that the establishment of a permanent employment relationship is of greater benefit to artist.

Contracts & Copyright: Contemporary Musician Income Streams

Musicians typically earn revenues from two sources: copyright law and contract. The proportion of revenue derived from each of these sources varies from artist to artist, but an understanding of the general distribution of earnings from each source is useful when considering proposed legislative amendments. Through a series of qualitative interviews with working musicians, this chapter contributes to the ongoing conversation around copyright’s import to, and impact on, musician revenue at different career stages.

ПРАВОВА ХАРАКТЕРИСТИКА МАЙНОВИХ ПРАВ НА ОБ’ЄКТИ АВТОРСЬКОГО ПРАВА ТА СУМІЖНИХ ПРАВ У КОНТЕКСТІ ЇХ ПЕРЕДАННЯ ДО СТАТУТНОГО КАПІТАЛУ ГОСПОДАРСЬКИХ ТОВАРИСТВ

У статті вирізнено об’єктивне та суб’єктивне авторське право, означено об’єкти авторського права і суміжних прав, майнові авторські і суміжні права та суб’єкти майнових авторських і суміжних прав, строки чинності майнових прав на об’єкти авторського права та суміжних прав. Виокремлено первинних суб’єктів, яким належать майнові права на об’єкти авторського права (автор, співавтори), та похідних суб’єктів, яким передаються відповідні майнові авторські права. Охарактеризовано підстави виникнення майнових прав на об’єкти авторського права та суміжних прав. Здійснено класифікацію оборотоздатності майнових прав на об’єкти авторського права і суміжних прав. Проаналізовано можливість часткового передання майнових прав на об’єкти авторського права та суміжних прав до статутного капіталу господарських товариств. Визначено особливості внесення до статутного капіталу майнових прав на об’єкти авторського права і суміжних прав, договірні конструкції, за допомогою яких може здійснюватися передання майнових прав на об’єкти авторського права і суміжних прав. Проаналізовано зміст авторських договорів і сформульовано таке визначення авторського договору: договір, за яким автор відчужує свої авторські майнові права (повністю або частково) або надає дозвіл на використання твору будь-яким одним або всіма відомими способами, чи зобов’язується передати створений у майбутньому твір. Висловлено доцільність використання для назви договорів щодо розпорядження майновими авторськими правами термінології, що вжита у главі 75 Цивільного кодексу України. Сформовано позицію про те, що передача майнових прав на об’єкти авторського права і суміжних прав до статутного капіталу суб’єкта господарювання вигідна в разі реалізації таким суб’єктом отриманих прав шляхом визначення юридичної долі твору.

Copyright Contracts and Earnings of Visual Creators: A Survey of 5,800 British Designers, Fine Artists, Illustrators and Photographers

There is a common perception that digitisation has prompted changes in creative labour markets. In particular, it is widely assumed that exploiters insist on grabbing (i.e. broadly conceived assignments of rights), that visual artists are not able to negotiate, that they are paid less and less, and that they are compelled to waive their moral rights. This study suggests a much more equivocal picture. In place of a straightforward narrative of decline, the results of the survey suggest that in most fields there has been less change over the last decade than one might have expected: that, terms of exploitation are most often about the same. That is not to say that there are no discernible changes in particular occupations and media. Respondents and interviewees identify some important shifts. Perhaps surprisingly, it seems there are changes in practice that are, from the creator's perspective, both positive and negative. The most positive change is identified amongst the fine artists where half (50%) see their personal bargaining position as having improved, with only 6% perceiving a weakening. The most disturbing changes are in relation to photographers. About half of all photographers (49%) say their bargaining position has worsened, with only 22% reporting improvements. A significant percentage of photographers (40%) report an increase in assignments (compared with 6% who think they have decreased). Moreover, 24% report an increase in moral rights waivers (compared to 3% who identify a decrease), and a decline in the practice of attribution. 31% of photographers see attribution as decreasing over the last decade, and only 8% increasing. 28% say income from secondary use has decreased, while only 16% say it has decreased.

The Bollywood Amendments: Film, Music and Indian Copyright Law (2010 to 2012)

One of the key objectives of the amendments made to the Indian copyright statute in 2012 was to protect the authors of underlying works in films (such as scriptwriters, lyricists and music composers) from exploitation by effecting extensive structural changes to the Indian Copyright Act, 1957, and, consequently, in the workings of India’s film and music industry. The other objectives were to ‘update’ India’s copyright statute to cause it to be compliant with the WIPO Internet Treaties (which India has not signed), and to ‘update’ it to bring it into consonance with new technological developments. The 2012 amendments therefore cover a wide range of subjects including the exhaustion of rights, the regulation of copyright contracts and the role of copyright societies; this paper examines the provisions of the 2012 amendments which affect the film and music industry, and, taking into consideration the factual background, explores whether the amendments are likely to realise their objectives.

Selected Clauses of a Copyright Contract in Polish and English in Translation by Google Translate: A Tentative Assessment of Quality

The aim of this paper is to carry out a comparative analysis of clauses in Polish and English copyright agreements in respect of their translation by a computer assisted tool—Google Translate, and to assess the quality of such translation. The comparison of parallel texts as a research method has been applied. The research corpora include authentic Polish and English Copyright Agreements. The analysed clauses have been excerpted from the above mentioned Copyright Agreements. The author chose the most standard clauses as well as clauses typical for copyright contracts. As a result of the analysis, translations provided by Google Translate are better in terms of typical clauses but of worse quality in terms of specialised copyright clauses.

Glimpses of resistance: Entrepreneurial subjectivity and freelance journalist work

New precarious work practices are emerging in the post-industrial labor market together with subjects that are fit to cope with them. The literature on neoliberal governmentality theorizes how individuals are made to embrace a subjectivity that enforces competition, personal responsibility, and autonomy. However, few studies so far have investigated how such subjectivities may be resisted. Building on a study of freelance journalists, this article investigates the question of resistance. Although these professionals are indeed governed by a neoliberal regime, the findings illustrate how they also attempt to resist by enacting alternative subjectivities. The freelance journalists engage in resistance by organizing professional communities and boycotting exploitative copyright contracts, reduce and refuse work, lower the quality on delivered jobs, and quit freelance journalism altogether. By doing so, they refuse personal responsibility for their situation, they spend their time not generating economic value, and they enact a subjectivity of collaborator rather than competitor. This study thus illustrates how individuals who are poised to embrace a subjectivity as ‘entrepreneurial subjects par excellence’ are, despite everything, still able to engage in practices that constitute subject positions that denaturalize and challenge entrepreneurial subjectivity, even if the immediate outcomes of such resistance may be ambiguous at best. The study adds to the recent literature on resistance, particularly to the discussion about what it is one resists and against whom resistance is aimed, by showing how more traditional notions of resistance may intermingle and interact with more recent ideas related to refusal and exit movements.

Empowering Authors via Fairer Copyright Contract Law

The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to tackle the problem of unfair distribution of revenues effectively, and its shortcomings are not well addressed by either general contract law doctrines or collective bargaining in the publishing sector. This article argues that Australia should consider addressing the problem by introducing certain rights inalienability restrictions in copyright law that are available in a number of jurisdictions overseas. The article discusses the rationales of introducing such provisions under Australian copyright law, such as unequal bargaining power, the prediction problem, fairness and utilitarian approaches. It counters the arguments that alienability restrictions are ineffective, and refers to the most recent empirical studies that show the ability of some alienability provisions to increase author remuneration.

Empowering Authors via Fairer Copyright Contract Law

The remuneration of Australian authors has been decreasing over the last few decades, partly due to unfair contracts between authors and publishers. At the same time, Australian copyright law appears to do nothing to address the problem. The freedom of contract doctrine that still prevails in Australian copyright contract law is not able to tackle the problem of unfair distribution of revenues effectively, and its shortcomings are not well addressed by either general contract law doctrines or collective bargaining in the publishing sector. This article argues that Australia should consider addressing the problem by introducing certain rights inalienability restrictions in copyright law that are available in a number of jurisdictions overseas. The article discusses the rationales of introducing such provisions under Australian copyright law, such as unequal bargaining power, the prediction problem, fairness and utilitarian approaches. It counters the arguments that alienability restrictions are ineffective, and refers to the most recent empirical studies that show the ability of some alienability provisions to increase author remuneration.