231120 글로벌 기업과 법적환경

Old British law of 1710, Queen Anne Act was the first copyright law.
The first international convention for the copyright laws is the Bern Convention In 1886, there
was an international convention for the purpose of standardizing the different laws regarding
copyright.

First copyright in the domestic stage is the Queen Anne act and in the global stage it is Bern
Convention.
If you are a writer in a foreign country and if your work goes abroad, you have to get paid for it.
That was the important starting point for the international convention of copyright laws.

There was a rivalry between the Bern convention and universal copyright convention. The
former was supported by Bern convention and the latter was supported by new world countries
like the US. The minimum terms of the protection period of the copyrighted material under
UCC is much shorter. Here it is the life of author+25 years and in Bern it is author+50
years. Under the UCC, formalities were regarded as a precondition for protection (if you
forget to insert the copyright notice in your copyright material you will not get any protection.
UCC was formed to weaken the powers of the authors of the Bern convention. After 50
years of rivalry these two conventions decided to merge, and we have the Standardized
International Law. Under this new law, there is no need of registration for protection
(Automatic Protection Principle) Second is no need of formality requirements like the
copyright notice.
Only America has the fixation requirement. Other countries do not have them.

There is a big difference between tangible property and intellectual property, the latter has
limited life so when it expires it is no longer a personal property. During the protection period the
author must get the most of the benefits as they can. After expiration it will be common property.

There are two kinds of different countries around the world in terms of copyright protection.
Developing countries protect copyright for the author’s lifetime and 50 years (Asia,
Africa). The developed countries provide longer protection periods like the author’s
lifetime and 70 years (Europe). The protection period will be different from country to country.
In America they extend the protection period when the protection period is coming near, some
people jokingly call the American copyright law as the Mickey Mouse Law.
In the developed countries the protection period is getting longer and in developing countries it
is not catching up with the period of developed countries. If you want to succeed, you have to go
to America.

Hemingway and ‘The Old Man and the Sea’. He has been dead more than 50 years but not
more than 70 years. In most of the developing countries the copyright has expired but in
developed countries the copyright has not expired. In France, Saint-Exupéry was declared to be
dead on 1944, in most of the countries the protection of copyright laws have expired. Now
anyone can actually publish his work without paying anything to anybody because it is common
property.
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In LG’s commercial the drawings or pictures are free from copyright because the artists have
been dead for a long time(at least 70 years). It is copyright free, so LG does not have to worry
about copyright issues.

Protection period is important because after this, nobody could claim any rights under
the law.

We do not protect
1. ideas and
2. discoveries or
3. works in the public domain (fairy tales) or
4. government publications (laws, statutes) or
5. slogans or titles or simple phrases
6. Process, concepts, or methods (ex. 1+1=2)
7. Facts, scientific truths

We have to distinguish idea and expression under copyright law because we want to both
protect the interests of the creator and also the public. It should be a monopoly but not an
excessive monopoly. The things mentioned above will not be protected but the detailed
expressions will be protectable. Using the idea of a preexisting image is okay. (Korean drama
and the Cinderella story)

Ideas are not protectable but expressions are. However, there is a deviation, which is the
format copyright (ex. American Idol). To use this they have to pay money. This is not
acceptable in the court of law because it is about the idea but in the network industry they
voluntarily respect and protect each other’s copyright.

What can you do if you are the owner of the copyright?

1. Right to reproduce your works
2. Right against derivative works
3. Distribution rights

But we do not protect all the creative expression in the market: there is no copyright in the
fashion industry in America or Korea.

Painting of 뭉크’s Scream. Hollywood is free to use it because the protection period is over.

In sports there is no copyright protection. So if you create a new skill or way to compete, it is
not protectable. But art in entertainment and the output(expression) is protectable.

Are tattoos protectable under copyright law? It is protectable. In most countries tattoos
must be performed by physicians called the tattooist. However, as long it is done we do not care
about the legality of the performance. The tattoo itself is the expression of the author. In this
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case the tattooists are the author of the expression. (Mike Tyson tattooists sued the production
company regarding the infringement of the art)

Is there a similarity in the terms of expression or an idea? If the idea is the only one being
shared it is okay, but the detailed expression itself cannot be copied.

Chicago Cloud Gate is a public art. When to use this item for a film or whatever, you need
permission from the author to use it for commercial purposes.

Author
Only human beings can be an author under the copyright law. If a painting was made by AI,
the computer machine cannot be the author under the copyright law.

Rights of Copyrights
1. Economic rights(Property Rights)-common properties, owner can have exclusive rights
Since it is a property right it can be transferred or sold. Protection period is 50 years in
Developing countries and 70 years in developed countries.
2. Moral Rights(European Countries)-Copyright is more than mere property
a. Right of Integrity
b. Right of Attribution
c. Right of Divulgence(?)
d. Right of Withdrawal
In America they only recognize property rights and European countries also recognize
moral rights.

There are pros and cons of this protection under the copyright
We need to have more room for people to share the knowledge and information without
violating the copyright law and that way is fair use. Fair Use is an exception to the tight control
under the copyright law.
What kind of use is justified?
1. Criticism
2. News Reporting
3. Teaching
4. Scientific or Academic Research

How do you know the use is allowed under the principle of fair use?(Four Factor Tests)
1. Purpose and Character of Use-If the purpose is non commercial the courts tend to
allow the use ( Not always allow but non commercial use is more likely to be allowed
than commercial use)
2. Nature of the Copyrighted Work-Is the work important or not?
3. Amount and Substantiality of the portion of the work used
4. Effect of the potential market for the work-The second user’s use must not interfere
with the commercial interests of the first user, the author must be given the full
opportunity to realize the commercial interests of the copyrighted material.
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→The second user’s work should not interfere or diminish the commercial maximum
interest of the author.

For the fair use, generally speaking scientific use, library and archive use or educational,
private use are okay. When talking about private use, it means that the use is for yourself.
Therefore whether you are selling for commercial interest or not it does not matter. As long the
location of the property has changed it is infringement.

Demi Moore and the movie poster’s commercial use: The US ruled that it belonged to fair use. If
it is in Korea, it would be infringement.

There are other different types of similar rights

1. Right of publicity: not a copyright because this is about the person themself. Right of
publicity is rarely enforced outside of America. In Korea we do not have the right of
publicity in the law. But in case law, maybe, depends on the situation.

There is a famous artist Nam something and his artwork is displayed in Korea. And his art
consists with many visuals like monitors. And some monitors disappeared because of
malfunction but we do not have the permission to replace these monitors with the new tech
monitors. So there is a dilemma here. Korea has moral rights and there is the right of integrity,
which means that you cannot modify or advance without the permission of the author.

What if another infringes on your copyright?

1. Civil penalties and criminal punishment.

Overall
● Copyright is one part of the intellectual property rights.
● Unlike other types of intellectual property, you do not have to register copyright to get
protection because as long as you produce it the protection is automatically given to
you
● It is okay to copy another person’s idea but it is not okay to copy the expression.
Expressions are detailed and the idea is vague and broad.
● In America you have to satisfy the requirement of fixation. In other countries you
only have to satisfy the originality requirement.
● Not all expressions are protected. Law, Statutes, Scientific methods, Ideas,
Procedure, Concepts, Ideas, Principles, Discoveries etc are not protected under the
law because we do not give too much power to the author in monopoly.
● The protection of copyrights is 70 years after the author’s death in developed
countries and 50 in developing countries.
● Rights of Copyright
○ Economic Rights: Your right as a property
○ Moral Rights
■ Right of Divergence
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■ Right of Integrity
■ Right of Authorship
Neighboring Rights: Not a copyright but similar. This is given to people who helped the
creator to create the works

Work for hire: Hiring a person to do work. Though the employer did not create the work the
employer is the author because the employer gave the specific order to the employee to do
their job)

Joint Ownership: More than two authors in one work

Derivative Works: To make a derivative work you have to get permission from the original
author.

Format Right: Not legally protectable but in the industry it is protected by participation and
cooperation.

Fair use: Though fair use is a strong and effective defense we want to minimize the exception
under the fair use.

Right of Publicity: Not a copyright but similar. It is an individual's right to control and profit
from the commercial use of his or her name, persona or character. It is being widely upheld
in court in America. Not that easy in other countries. Usually this right is given to celebrities
because this was created for the commercial interests of famous people (Though the word
famous person depends on the situation.