This study explores competition policy issues related to movie industry liberalization in the DDA Services negotiation. Specifically, the study responds to the claim that additional liberalization measures (in the case of Korea, this means eliminating or reducing screen-quota) would bolster anti-competitive activities (such as block booking) by foreign major movie distributors operating in Korea, and result in foreclosure of the distribution and exhibition markets to Korean films. The study finds this claim to be unjustified. Although there is a trend towards vertical integration in the movie industry, and entry barrier to the exhibition end of the market seems quite high, the overall competition in the Korean movie distribution and exhibition markets is intense, and foreign distributors do not possess significant market power. If Korean films are excluded from exhibition at all, this is not likely to be a result of anti-competitive actions in distribution.
Therefore, from the perspective of competition policy, putting an ex-ante artificial ceiling on market share of foreign films through measures such as screen-quota is not warranted.
Such a direct regulation of the market is alien to antitrust principles, and should only be used when more market friendly means of regulation do not exist. The Korean competition law and policy is sufficiently developed to regulate anti-competitive activities when they do occur, and the movie industry is no exception to the application of competition policy.
This study presents a detailed analysis of economic theory and case law regarding tied-sale (or block booking), refusal to deal and vertical integration, the three vertical restraints of trade that are most common in the movie industry. It has come to be well known that such vertical restraints can have both competition restricting effect and efficiency enhancing effect. Their antitrust treatment thus requires careful balancing of the two effects, based on sophisticated economic analysis, and according to 'rule of reason.' This study concludes that in all these areas examined, the Korean competition law has put in place appropriate regulatory mechanisms.
Nevertheless, there are rooms for improvements. First, criteria for persecuting tie sales for restraint of trade needs to be changed. Economic theory suggests that the firm which forces others to purchase a tied good must have market power in the primary goods market if it is to gain monopoly profit in the tied goods market. Case law in the US thus requires possession of market power in the primary goods market as a pre-requisite for tied-sales to be in violation of antitrust law. Korean competition law and rulings regarding tied sales do not explicitly require presence of market power for tied sales to be found in restraint of trade. Evidence of unfairness and forced sale, which restricts freedom of choice in an economic transaction is sufficient for the act of tied sale to violate competition law. This should be changed in light of economic theory. Recent amendments in the law to be effective by April 2005, reflects changes towards this direction.
Secondly, as a minor point, better market concentration indices should be used when setting benchmarks for clearing vertical M&As. Currently, only the market share of the top firm or the aggregate market share of the top three are used as benchmarks. Theory suggests that whether a vertical M&A is going to be anti-competitive or not depends to a great deal on how concentrated the relevant market is overall. Thus, an accurate measure of market concentration is an important element in competition policy towards vertical M&As. The Herfindahl index, which takes into account of market shares of all the firms in the market may give a more accurate picture of the market structure. But even the Herfindahl is not perfect, and it may be advisable to consider a variety of concentration indices. Since the Korean competition authority already consults the Herfindahl index in many cases, even when not required by law, this should not be a particularly difficult undertaking.
Thirdly, developing a dispute settlement procedure specific to the movie industry may be necessary in addition to the application of competition policy. This is because many of the alleged unfair trade practices are 'unfair' from the perspective of the competitor, rather than seriously impairing competition and affecting market structure in general. The competition authority is limited in its resources and is already overburdened with issues with greater impact on competition. It should not be required to spend its energies on minor disputes between competitors. These cases should be relegated to a dispute settlement procedure. This study has not made a detailed study of such a possible procedure and leaves the task to future research. However, the dispute settlement procedure included in UIP's undertaking with EU, which partly follows the 'Rules of the Arbitral Court of the International Chamber of Commerce,' can be a good reference. Further, there are domestic dispute settlement procedures developed for specific industries (eg, telecommunications, electronic commerce, subcontracting in construction and other fields) which can provide useful guidance for the movie industry. The industry players, experts, and consumer groups are expected to participate in such a procedure. The role of the competition authority should be limited to a minimum, to the degree of guaranteeing that such a procedure is competition-friendly and do not develop into an industry cartel.
Another option is greater use of private actions. Private actions against violation of the competition law has been limited in Korea because under the current law, private action was not allowed without completion of an investigation by the competition authority. Recent amendments in the law is expected to facilitate damages claims through private actions. However, this does not extend to injunctions, and how much punitive damages can be allowed is uncertain. Hence, to what extent private action will become widely used remains unclear. In addition, private actions motivated by high damages awards can be over-used, and can also be strategically abused to restrain competitors. Considering these limitations, developing a dispute settlement procedure can be a real policy option to resolve the many disputes in the movie industry that do not have serious anti-competitive implications.
These are policies that should be considered for effective domestic regulation in response to increased expected foreign competition if additional liberalisation is forthcoming as a result of the DDA Services negotiations. In the absence of an international regime for competition policy, however, competition policy related issues must be considered not only domestically but should also be raised in the DDA negotiations. In particular, export cartels such as the Movie Producers Association (MPA) in the US should no longer be officially approved. This should be a pre-requisite to further liberalisation of the movie industry, since the rationale for approving such an export cartel was to provide compensation against protectionist measures such as erection of screen quotas in foreign markets. This can no longer be a justification when such protectionist measures are eliminated.

서언

국문요약

제1장 서론
1. 연구의 목적 및 배경
2. 연구의 구성 및 방법
가. 연구의 구성
나. 연구의 방법

제2장 DDA 시청각서비스협상 논의 현황
1. UR에서의 개방수준
2. 주요 현안 및 논의 전망

제3장 세계 영화산업의 현황과 한국 영화산업의 성장
1. 세계 영화산업의 현황
2. 한국 영화산업의 성장과 교역
가. 영화산업의 비약적 성장
나. 국제경쟁력 향상과 수출입 추이
제4장 영화유통시장의 경쟁구조
1. 영화산업의 특성
2. 영화산업의 구조
가. 제작
나. 배급 및 상영
다. 후속시장
3. 국내 및 수입영화의 유통구조
가. 배급 및 상영체계
나. 후속시장의 유통구조
4. 영화유통시장에서의 경쟁과 시장지배력
가. 배급사간 경쟁
나. 극장간 경쟁
다. 배급과 상영부문간의 관계
라. 수직통합 추세
5. 소결

제5장 경쟁법을 통한 영화유통시장의 사후적 규제
1. 영화시장 규율에 관한 경쟁법적 고찰
2. 영화산업에 대한 미국의 경쟁정책
가. 끼워팔기에 대한 파라마운트 판결
나. 파라마운트 판결 이후의 경쟁정책적 이슈
3. EU의 UIP에 대한 제재
4. 한국 공정거래법의 영화산업 적용에 대한 평가
가. 끼워팔기의 공정거래법상 규제
나. 공정거래법에 의한 거래거절의 규제
다. 수직결합의 공정거래법상 규제

제6장 영화시장의 개방에 대한 경쟁정책적 시사점
1. 영화산업 개방에 대비한 국내 경쟁법의 정비
2. 영화산업에서의 분쟁해소를 위한 추가적 장치
3. DDA 시청각서비스협상에 대한 시사점

부록
1. 끼워팔기에 대한 이론적 논의 및 판례
2. 거래거절의 반경쟁성이론과 미국의 판례법
3. 수직결합에 대한 법경제적 분석

참고문헌

Executive Summary