Tuesday, March 01, 2011

JYJ - phantom petition

I tried to look for it very dilligently, and of course when I had time, that means not so much.
According to The Korea Herald the petition is nowhere to be seen. The petition was reportedly signed by over 80 thousands fans (86,418) and translated to 10 languages. Hell, if it could help, I'd translate too, but I simply couldn't find any source where I could sign it. Was it "under-the-counter" kind of petition?

What's it about?

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.

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.
Translation by Jimmie of TheJYJFiles
Shared by TheJYJFiles