A Study on the Fair Trade of Content Rights: Protecting Small & Medium Sized Content Creators and Publishers in the Nested Publishing Industry

Abstract

Online and wireless communications have dramatically changed the contents industry marketplace. Content transactions are now instantaneous as distribution channels move from the ‘mart’ to smart platforms, creating opportunities for content creators large and small. Yet with opportunity comes the threat of imbalance in the industry ecosystem. In order to ensure the health and diversity of an industry that relies so heavily on the welfare of small creative enterprises, it is essential to establish rules for the fair transaction of content rights. Several structural forces may work against such rules: first, the industry consists of a large number of small distributor intermediary businesses (e.g. major publishers); second, end distributors (e. g. platforms) maintain a superior, monopsony position; and third, economic valuation of content is difficult. In terms of acquisition business model, rights transactions can be classified into three general models: (1) license model, (2) original acquisition model, and (3) monopsony model. This study explores the publishing industry in detail, considering key statutes and their operation across the models. From analysis of Korea and the US statutes and case law, and decisions of the Fair Trade Commission (FTC) of Korea, we offer evaluation criteria for discerning between fair and unfair content rights transactions. We further recommend industry practice that may enhance the likelihood for fair content rights transactions, and thus a thriving publishing ecosystem.