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South Korea's Standard Publishing Contracts and Adaptation Rights

 

2019.08.05

 

The establishment of standard contracts by the Ministry of Culture, Sports and Tourism

 

Following the 'Cloud Bread Incident1)' of 2014, authorities in South Korea began mulling over fundamental issues regarding the working conditions of South Korean content creators. After this incident, the culture ministry created and distributed seven standard contracts for publishing after discussions with rights holders and publishers. The author of this piece, a member of the Korean Society of Authors, was also invited to offer opinions as part of the legislation taskforce for the standard contracts.
The seven contracts from the culture ministry were per the following: right of publication, right of monopolistic publication, book publishing rights, exclusive publishing rights, publication rights and exclusive settings, transfer of intellectual property, and permission of work usage (use for outside Korea). Of these, the two most often used are the contracts for transferring intellectual rights2) and book publishing3) and the following will address these two.
First, intellectual property transfer contracts must clearly state what will be transferred and for how long to reduce the fallout from contracts4) that do not provide the original proprietors with payouts even in the case of additional profit by publishers. The contract states the right of share for the intellectual property rights (right of reproduction, right of public performance, right of public transmission) for optional right transfer. The proprietor can also choose whether or not they will transfer adaptation rights as well. All time periods for right transfers are stated so after the contract expires, the artists or authors will have their rights transferred back to them.
There were many opinions shared when the book publishing contract was being drafted. The contract now states the original author holds all the rights regarding adaptations and that they can entrust responsibilities like levying charges to other parties, including publishing companies. An amendment was made to include a one-time automatic contract extension.

 

One can easily find today that there are more publishers that use either their own contracts or
those created by other third parties than the contracts provided by the government.

 

At the time when the contracts were established, hopes were high that many publishing companies would use the standard contracts as they were made, after all, via discussions between the right holders and publishers. However, one can easily find today that there are more publishers that use either their own contracts or those created by other third parties than the contracts provided by the government. This is because the contracts are recommendations, meaning there are no legal repercussions even if they are not used. Hence, no one is obligated to use these contracts. During the drafting process, some said the usage of the contracts should be lawfully enforced but eventually, whether the contracts would be used or not would be left to markets.

 

Standard publishing contracts in the publishing industry

 

Currently, the two most influential publishing associations in South Korea's publishing industry, the Korean Publishers Association and Korea Publishers Society, provide both the government's standard publishing contract and their respective standard contracts on their websites. Below are articles regarding adaptation rights from the individual standard contracts created by each of the associations.

 

Korean Publishers Association5) Article 20 (Usage of adaptations)
① During the contract period, if the original work is adapted in ways including translations, remakes, digests, plays, movies, broadcasts, audio/video recordings or leases, the proprietor will entrust all related issues to the publisher. However, if there is a separate special clause under an additional stipulation, that will be respected. Also, under Article 21 for secondary revenue ratios, items for which the proprietor's revenue rate is 100 percent will be considered as not granted to the publisher.
② Regardless of all the Articles, should necessities arise for the publisher, decisions can be made following negotiations with the proprietor.
Korea Publishers Society6) Article 7 (Adaptations)
① During the contract period, if the original work is used for adaptations including re-inclusions, translations, remakes, comics, plays, movies, animations, broadcasts, audio/video recordings, edits, Article 25 of the Copyright Law (Use for Purpose of School education) and Article 31 of the Copyright Law (Reproductions, etc in Libraries, etc) or other uses, related tasks will be delegated to the publisher by the proprietor, and conditions of the permitted usage must be decided upon after consultation with the proprietor.
② Profits from adaptations will be divided between the proprietor and publisher by         each.
③ Should translations of the original work be sold overseas, profits from the translation will be divided between the proprietor and publisher by         each. However, following the signing of this agreement should the proprietor wish to transfer the exclusive execution of the overseas translation rights contract to a third party like a publishing agency, the proprietor must receive the publisher's agreement, and the distribution of royalties must be negotiated between the proprietor and the publisher.
④ Regarding the usage of adaptations, examples in Articles 1, 4 and 5 of this contract should be followed.

 

According to these publication contracts, the publishers are subject to receiving rights such as the right to use publications for adaptations and the right to receive compensation, which is typically the right of the proprietor per publishing law. Realistically, it is difficult for individuals to respond to every single adaptation effort or republications after signing a setting contract for publishing rights, so for some, it may seem reasonable to hand over such rights to publishers as it states in the above articles. However, there are opinions calling for the amendment of these clauses to better respect the wishes of writers should there be republications or adaptations in the works.

 

Need for strengthened mutual trust

 

Publishers and writers need to have an attitude that respects the other party and
clauses in contracts currently being used on the market need to change to respect both sides.

 

If there are no publishers, then there would be no writers. This is also valid the other way around - if there were no writers, there would be no publishers. Like fish cannot live without water, publishers and writers can be either fish or water to each other. In this symbiotic relationship, both need to have attitudes that respect the other party, and on that same front, clauses in contracts currently being used on the market also need to change to respect both sides. As the standard contract created by the South Korean government is the end result of discussions by both publishers and writers, it needs to be respected by all parties and used widely. This must be so to ensure writers are not taken advantage of and trust between writers and publishers will be strengthened to create a healthier publishing ecosystem.

 

 


1) An incident where the publisher gained 440 billion won worth of profits from adaptations like animated characters but the original artist received only 18.5 million won due to contractual obligations.
2) A contract that states the transfer of copyright from the previous right holder to a new right holder.
3) This is a contract that differs from usage permission contracts in the fact that boundaries (duplication, distribution) for publication can be set. It is also different from exclusive setting contracts for the right of public transmission due to the share of rights.
4) A contract in which the publisher does not provide payments for additional profits beyond the agreed sum to be paid.
5) Website for the Korean Publishers Association :http://kpa21.or.kr
6) Website for the Korea Publishers Society : http://www.kopus.org

 

 


Written by Jung, Goo Sung (Legal & Monitering Team, Sai Copyright Agency)

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Jung, Goo Sung (Legal & Monitering Team, Sai Copyright Agency)

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