[News] International Fans Submit Petition to the Seoul Central District Court for the Guarantee of JYJ’s Entertainment Activity Rights

JYJ’s 80K Foreign Fans Submit Petition to the Court, “Stop SM’s Interferences”

Newsen Feb. 28, 2011  16:33

[Newsen Reporter Lee Sooyeon]

86,418 foreign fans of JYJ (Kim Jaejoong, Park Yoochun, Kim Junsu) submitted a petition that addresses JYJ’s restricted entertainment activities among other issues to the Seoul Central District Court.

On February 28, JYJ’s foreign fans communicated through a press release that “between February 2nd and February 25, foreign fans voluntarily translated the petition into 10 different languages and set up a website for the signing of the petition in order to urge the Seoul Central District Court to issue a timely ruling confirming JYJ’s rights and guaranteeing their entertainment activities.”

JYJ’s foreign fans clarified their purpose in launching the petition as the following: “We, the international consumers of Korean Wave and fans of entertainers Kim Jaejoong, Park Yuchun, and Kim Junsu, of groups Dong Bang Shin Ki and JYJ (hereafter, collectively “JYJ”), petition for the public recognition and the cessation of the longstanding and repeated infringement by S.M. Entertainment Co., Ltd. (hereafter, “S.M. Entertainment”), KMP Holdings Co., Ltd. (hereafter, “KMP Holdings”), the Korean Entertainment Producers Association (hereafter, “KEPA”), and the Korean Federation of Pop Culture and Arts Industry (hereafter, “KFPCAI”) upon JYJ’s legal rights affirmed by courts of the Republic of Korea and their human rights which she has committed to uphold by entering into international treaties.”

In addition, foreign fans explained, “SM Entertainment and its affiliated organizations have flagrantly violated orders by the courts of the Republic of Korea regarding JYJ’s right to engage in entertainment activity freely and without interferences.”

Furthermore, foreign fans noted the importance of intellectual property rights, labour rights and the right to wage protection through disclosure in this case. They expressed their position that “[these rights] apply to JYJ as citizens of the Republic of Korea who have had their legal right to freely pursue entertainment activities without interference infringed,” and that “[JYJ’s] right to just and favourable conditions of work with sufficient rest and right to wage protection through adequate disclosure must be guaranteed.”

They continued, “We ask that the Republic of Korea show her commitment to these basic rights and publicly condemn and correct the current situation at once.”

On February 21, the Seoul Central District Court Civil Cases Division 51 (Judge Kim Daewoong) acknowledged that SM was illegally interfering in JYJ’s activities and granted an order for indirect compulsory performance [in favour of JYJ].

이수연 dream@newsen.com

Source: Newsen via Nate

Translation by Jimmie of TheJYJFiles

Shared by TheJYJFiles

Please do not add/remove credits

________________________


JYJ’s Foreign Fans Submit Petition to the Seoul Central District Court for the Guarantee of JYJ’s Entertainment Activity Rights [Attached Text]

TV Daily February 28, 2011

[TV Daily = Reporter Seong Mikyeong]

86,418 foreign fans of group JYJ have submitted to the Seoul Central District Court and the Korean Fair Trade Commission a petition requesting the guarantee of JYJ’s right to entertainment activities and the protection of their human rights.

JYJ’s foreign fans stated “Although the Korean court has twice affirmed JYJ’s right to engage in entertainment activities without interference, we have witnessed SM and its co-conspirators violate these rights openly and repeatedly” and “[the hope] that consumers of the Korean Wave can enjoy Korea’s cultural products with a clean conscience” as the reasons for submitting the petition.

From February 2 to February 25, they have voluntarily set up a petition site in 10 different languages in order to collect signatures for the guarantee and protection of JYJ’s free pursuit of entertainment activities and human rights.

What follows is the text of the petition.

Purpose of the Petition

We, the international consumers of Korean Wave and fans of entertainers Kim Jaejoong, Park Yuchun, and Kim Junsu, of groups Dong Bang Shin Ki and JYJ (hereafter, collectively “JYJ”), petition for the public recognition and the cessation of the longstanding and repeated infringement by S.M. Entertainment Co., Ltd. (hereafter, “S.M. Entertainment”), KMP Holdings Co., Ltd. (hereafter, “KMP Holdings”), the Korean Entertainment Producers Association (hereafter, “KEPA”), and the Korean Federation of Pop Culture and Arts Industry (hereafter, “KFPCAI”) upon JYJ’s legal rights affirmed by courts of the Republic of Korea and their human rights which she has committed to uphold by entering into international treaties.

I.          Legal Rights: S.M. Entertainment and organizations with which it has cooperative business relationships are infringing upon JYJ’s court-affirmed right to be free to engage in entertainment activity without interference.

A. JYJ has the court-affirmed right to be free from interference in their pursuance of entertainment activities as entertainers.

On October 27, 2009, the Seoul Central District Court of the Republic of Korea (hereafter, “Court”) granted JYJ’s preliminary injunction to suspend their exclusive contractual relationships with SM Entertainment. In its opinion, the Court explicitly ordered that S.M. Entertainment “shall not, to the third parties such as TV networks, music production companies, concert agencies, and the like, raise objections to [JYJ’s] entertainment activities with them…, or make any request to terminate their relationship with [JYJ] or engage in any other such similar conduct to interfere with [JYJ’s] engagement in any entertainment activity.” Therefore, JYJ is legally entitled to engage in entertainment activities as they wish.

B. In direct violation of court orders and JYJ’s rights, S.M. Entertainment, KMP Holdings, KEPA, and KFPCAI are illegally interfering with JYJ’s entertainment activities.

1. KMP Holdings

KMP Holdings is a joint venture by seven of the largest entertainment companies in Korea, including S.M. Entertainment. It was established to provide, among other entertainment services, the distribution and circulation of each member company’s downloadable digital media. KMP Holdings contacted and threatened the major distributors of downloadable digital music to pull all KMP Holdings products from any distributor that distributed recordings by JYJ. As a result, the soundtracks to Park Yuchun’s television drama Sungkyunkwan Scandal, in which all three members of JYJ participated, were prevented from circulation until its publisher publicly stated that it intended to file a complaint to the Fair Trade Commission.

2. Korean Entertainment Producers Association

On January 20, 2011, KEPA, whose members include S.M. Entertainment, held its general assembly to collect signatures for a petition for future submission to the Court. The petition expresses “serious concern about… [JYJ’s] claims filed in court to declare their contract invalid… If [the Court] finds in favor of the three who have misused the public misperception of a slave contract to file the preliminary injunction and the action, many other entertainers will abuse such decision to pursue lawsuits against their own entertainment companies.” KEPA’s encouragement of its members, which are entertainment companies that collectively produce up to ninety percent of Korean popular music, to sign and endorse this petition seriously undermines any present and future business relationships between them and JYJ and damages JYJ’s standing in the Korean entertainment industry. Furthermore, the petition constitutes public slander and misrepresentation of JYJ and their actions. That KEPA makes this gross misrepresentation in hopes and expectation that the Court would not discern its true motives also betrays that it holds the justice system of the Republic of Korea in contempt.

3. Korean Federation of Pop Culture and Arts Industry

KFPCAI, whose members include KEPA, acted to directly interfere with and restrict JYJ’s entertainment activities by distributing formal statements to Korea’s major media outlets that urged for a ban on JYJ’s television and radio appearance. As a result, JYJ has since been prevented from appearing in any and all music performance and awards programs and variety shows. The Fair Trade Commission has already received a formal notice by members of the public to investigate this breach of court orders.

II. Human Rights: SM Entertainment’s actions towards JYJ violate the internationally-recognized norms of human rights protection that the Republic of Korea is obligated to uphold.

A.        The Republic of Korea is obligated as a member of the United Nations and signatory state to multiple international human rights treaties to uphold internationally-recognized norms of human rights protection.

An international treaty creates for its States parties a floor for the protection of the human rights discussed therein. In addition to upholding its letter, Article 18 of the Vienna Convention on the Law of Treaties obligates such States parties to uphold its spirit by refraining “from acts which would defeat the object and purpose of a treaty.” The Republic of Korea, as a member of the United Nations and a party to many such rights treaties, has committed herself to uphold these norms of international rights protection.

B.        SM’s actions towards JYJ have been and continue to be violations of the letter and spirit of the above norms.

1.         Moral Rights to Intellectual Property

Moral rights are one of the rights of the creators of copyrighted works. Moral rights encompass the artist’s right of attribution and his right to the integrity of the work, and exist independently of whether the artist possesses the work’s copyright, i.e., the economic rights.  The landmark treaty Berne Convention for the Protection of Literary and Artistic Works of 1886 (hereafter, “Berne Convention”), which the Republic of Korea ratified in 1996, explains that “independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion.” Most civil law jurisdictions, including the Republic of Korea, recognize moral rights.

Despite this, through Article 3 of their contract, S.M. Entertainment unilaterally takes the copyrights to all of JYJ’s albums and sound recordings, including self-compositions. It also claims the authority to distribute, broadcast, and change JYJ’s works “in any way into any form” it chooses, without JYJ’s consent. This provision directly breaches the Berne Convention and JYJ’s moral rights, which reserves such authority and power of objection for JYJ.

2.         Labor Rights

a) Right to be Free from Forced or Compulsory Labor

The Republic of Korea is a member state of the International Labour Organization (hereafter, “ILO”), an agency of the United Nations and the most influential body in the area of international labor law.  As its Declaration provides, “from the very fact of membership,” the member state “endorse[s] [its] principles and rights” and is obligated “to promote and to realize” the principles of fundamental rights, including that of the “elimination of forced or compulsory labour,” defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” “No concession” is “granted to private individuals, companies or associations.”

S.M. Entertainment’s contract with JYJ is contrary to the Republic of Korea’s such commitment. Article 3.3 of the contract provides that it has “all rights to all entertainment activities” by JYJ. It then provides that during the duration of the contract JYJ “shall follow with diligence every decision made by the company and shall not carry out activities at their own discretion.” Upon violation of the above or upon termination of the contract, JYJ is obligated to pay damages of an amount equal to the sum of three times the total investment costs (publicity costs and any and all other expenses incurred that was paid or used in any form) and two times the expectation damages.

As the Court wrote in its opinion, the above provisions act to coerce JYJ to perform any and all orders by the company and to prevent them from terminating, even for good reason, the contract. The court wrote that “the amount of the total damages,” estimated to be at the minimum approximately 400 to 480 million USD, is “excessive.” The court also noted that the variables “total investment costs” and “expectation damages” are “not only subjective and variable in character, but also can be used as means to more thoroughly prevent an entertainer from exiting the contract the more he, like [JYJ], achieves economic success… by causing the total damages amount to increase with such success.” Furthermore, as under the contract JYJ was only entitled to approximately 0.44% to 2.22% of album sales with no realistic prospect of other compensation, the damage provision, as the Court found, not only “completely blocked” JYJ from deviating from the contractual relationship, but also acted as “a device to subjugate them to [S.M. Entertainment].”

This “menace of [the excessive] penalty” bound JYJ to forced and compulsory labor as prohibited by ILO for the duration of the contract. The duration, initially thirteen years, was to extend to compensate for any time period during which personal reasons prevent JYJ from fulfilling their duties under the Contract, such as Korea’s compulsory military service. As the court noted, “the majority of the prime years [JYJ] can enjoy as entertainers… [fell] under the Contract.”

While ILO excuses from the label of “forced or compulsory labour” any labor for which a person offer[s] himself “voluntarily,” this defense is likely unavailable. As the Court writes, JYJ “had no choice but to accept” the contract as offered and even when they had solidified their places in the market, “did not have negotiating powers strong enough to make them equal parties [to S.M. Entertainment]” and “merely acquiesced to, without any real negotiation, the terms that [S.M. Entertainment] unilaterally presented.” Furthermore, at the time of signing, Kim Jaejoong, Park Yuchun, and Kim Junsu were seventeen, seventeen, and thirteen years old respectively.

b) Right to Just and Favorable Conditions of Work

The Republic of Korea has further expressed her commitment to protect human and labor rights by also ratifying the United Nations International Covenant on Economic, Social and Cultural Rights (hereafter, “ICESCR”).

Article 7 of ICESCR provides that each member state must recognize the right to “just and favourable conditions of work which ensure, in particular… rest, leisure and reasonable limitation of working hours and periodic holidays with pay.” Despite this mandate, the rest days given to JYJ in years 2006 to 2009 were 5, 7, 10, and 10 days respectively. As discussed above, JYJ was compelled to abide by any schedule that SM demanded, and the contract did not provide for a vacation.

As a result, from their debut in December 2003 to July 2009 when the current action commenced, JYJ recorded and released 46 albums and singles (excluding records that were rearrangements of previous releases or recordings of concert performances) and performed 92 full concert days. At the same time, JYJ also appeared in hundreds of television music and variety programs, filmed commercials, and participated in radio shows, among other such activities, in multiple nations. The prolonged deprivation of rest led to frequent serious injuries and illnesses.

c) Right to Wage Protection by Disclosure

The ILO also provides that workers have a right to be informed of the wage conditions and the calculations for each pay period, especially through the payor’s maintenance of adequate wage records. It also provides that workers have the right to know the conditions to which deductions from wages may be made. Contrary to this, S.M. Entertainment, despite repeated requests by JYJ, refused to explain both the terms of their pay and the reasons for deductions that on some occasions exceeded their pay.

Conclusion

As stated above, S.M. Entertainment and its affiliated organizations KMP Holdings, KEPA and KFPCAI have flagrantly violated orders by the courts of the Republic of Korea and in turn its citizens JYJ’s right to engage in entertainment activity freely and without interference. S.M. Entertainment through its contract has also violated JYJ’s human rights, recognized internationally and by the Republic of Korea, to exercise moral rights upon their created works, to be free from forced and compulsory labor, to enjoy just and favorable conditions of work with sufficient rest, and to benefit from wage protection through adequate disclosure. We ask that the Republic of Korea show her commitment to these basic rights and publicly condemn and correct the current situation at once.

Source: TVDaily via Nate

Translation by Jimmie of TheJYJFiles

Shared by TheJYJFiles

Please do not add/remove credits

 


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34 thoughts on “[News] International Fans Submit Petition to the Seoul Central District Court for the Guarantee of JYJ’s Entertainment Activity Rights

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  2. Pingback: (NEWS + Pic) 110228 JYJ International Fans Sign Petition for JYJ’s Rights « JYJ

  3. Thank you guys, we are really proud of you! I know this won’t stop the lawsuit miracuolusly tomorrow but it lets them know that the international fans not only from Asia but America, Europe and all over the world are aware of the situation and are watching closely.

  4. This is an achievement itself.
    The media knows that international JYJ fans are following the case.
    And what is more important, it shows how is not the lawsuit per-se what damages the “korean wave” but the blocking of JYJ from TV and Radio.

  5. Until to JYJ’s action, I sort of Korea don’t have any Human Rights for the JYJ/ETAL talent. And make me SAD, and nobody can’t say to Dictator Lee Sooman/ETAL(KEPA,TV STATION, SOME JOURNALIST). If still SM does one man show at COURT HOUSE. I try to APPILE to Had quoter of Human Rights office.
    But Korea had a Law for people and I prays each one of JUDGE! Much Mahalo nui Loa .

  6. Thank you so much for all your hard work for this project! I really was more than happy to sign the petition. The photos of the printed-out version looked pretty impressive in page count. :’D

    Also, haven’t been able to comment in everyone of your posts but I’ve loved reading every single of them, very well researched and phrased. Thank you. ♥

  7. Thank you theJYJFiles and all the staffs volunteered in this petition process for all your time and efforts! This project in itself is an extraordinary achievement.

    The Korean media and various administrative departments should realize how well-informed and critical our international fans are. The government sees the prosperous of K-Pop and hallyu as a perfect way to promote the country’s image and spirit, and inevitably also dragging more attention onto itself regarding on the issues revolving the entertainment industry. It is indeed a double-edge dagger. The international fans are not merely passive receivers, in fact, we critically think and reflect on the people we like and their artistic products. As an exporting cultural product, hallyu and k-pop is representing their industry in all aspects, from artistry to systematic structure. The backwardness of the giant monopolies and their under-table deals became more transparently not only to their domestic public, but also to the international audiences.

    It is time for the government to step in and put up stronger and more fundamental measures to solve the unfairness, since the industry leaders are so reluctant to progress. I believe it was not the law suit itself that broke the beautiful bubble revolving the k-pop world in many fans’ heart. The legal rightness is not the key here anymore since the court has already ruled twice, proving the unfair working condition in the industry. It was how the legal decision was taken care of really made people question and react. SME and its business friends’ behaviors ever since the outbreak of the law suite totally degraded its images. If this does not stop any time soon, the positive image the industry has been working so hard to construct for so many years will become ever so shaky and eventually collapse.

    • Thank you!

      This is the truth that continues to escape the consciousness of those in power in the music entertainment sector.

      “If this does not stop any time soon, the positive image the industry has been working so hard to construct for so many years will become ever so shaky and eventually collapse.”

      No one is too big to fail.

  8. Thank you JYJ file for all the hard work. Thank you Jimmie for always translating all news to us. And thank you for all of us, i-fans of JYJ for making a very impressive numbers, “86,418 fans” all over the world who are willing to help JYJ in whatever ways we can. And now, hopefully we will receive another good news this mc. Lets pray everyone!!!

  9. too daebak^^ i cx phrase in words how much happy i am now. Im so proud with the success of this effort. Thank you so very much

  10. Again, my sincere gratitude to TheJYJFiles and affiliate sites that contributed to the success of this important project. Way To Go!

  11. This is a huge triumph for truth and justice. Let all the Korean citizens know that JYJ boys not only have Korean fans who love them; they also have foreign fans who love them and want to protect them against the lies and cheats of SME.

  12. This was a major project to initiate just a few months into starting this site but The JYJ Files (despite hiccups here and there) pulled it off beautifully! Thank you for reminding the international fandom & the Korean public of the larger structural issues at stake re the K-Pop industry and sparking discussion & reflection.

    Many thanks to admins, translators, intl sites that promoted, and all of us who read, signed, and advocated/peddled this petition to people around us!

  13. Pingback: (NEWS) 110228 JYJ International Fans Sign Petition for JYJ’s Rights « jyj3

  14. Congratulation and millions of thanks to TheJYJFiles and affiliate sites that contributed to the success of this important project. keep going on. luv u guys.

  15. Truly feel gratified for the volunteers to give in their effort and time in making the JYJ files, make us “foreign fans” have the deeper sight about our artists’ situation, our “team spirit” and “team effort” never extinguish, and get more higher and higher rapport amongst us to support our “revered” artists…JYJ…….. JYJ ……… Homin…. TVXQ…..Fighting…….stay strong and stay tough, we’re together to get through to the end…………. sunshine must emerge after the lightning and thunder storm.

  16. Congratulations JYJ Family! Upon the submission of this petition, I believe the relevant governing bodies will in no uncertain terms nor shadow of doubt review and reflect on the country’s legal and social structure that triggered such an adverse global reaction.

    I’m eagerly anticipating responses or reactions to this petition.

  17. I am so proud to be part of this! I am proud that I am not just a mere consumer but a legit JYJ supporter! Be proud JYJ fans, you have shown your power!

  18. I just don’t understanding politician, I believe one party ‘re so close to SM/KEPA or ETAL SME. It’s happen like a QTV. Korea’s very small and can make a everybody happy to working together. But one man be Dictator and greediness destroy the whole system.
    I keep Support JYJ and keeping touch with International fans. Mahalo for your awesome information. Ty

  19. YAY! so excited about this. I even had my sister sign it lol.

    Thank you so much JYJfiles, you’ve finally given intl fans the voice that they’ve yearned for. This was an excellant way to show SMent and KEI that we’re not just currency. We’re real people with opinions and values of our own, and we wont stand by while this amount of injustice occurs. I’m so proud to be a fan among the likes of so many of you. To create so many successful, mature, and thought-provoking projects just blows my mind. JYJ is bringing a new face to artists in Korea, and I believe JYJ fans are bringing a new face to fans as well 🙂

  20. WOW…! Only 4 days broadcasting TV. But it’s OK. Korean entertainment assn. can control almost every where, no wonder so many entertainer suicide. I just got a JYJ’s news from japan, japanese fan’re really up-sets because avex said between JYJ no longer under contract so no matter Oricon hit-chart ranking, oricon refuse JYJ’s music. Every body Can’t compare the BillBoard! We’ll keep support JYJ! Ty

  21. thanks a million for everyone who has come this far, holding our hand to compete with this all crime ..
    now lets hope that justice will show its power

    lets keep working hard everyone, it is not only for JYJ’s sake, but for all people who deserve to have their basic right as a human being which is freedom of doing legal activities..

    fighting !!!

  22. I would like to thank you for the efforts you’ve put in writing this site. I am hoping to see the same high-grade content by you in the future as well. In truth, your creative writing abilities has encouraged me to get my own website now 😉

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