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View more articles by Chad O'Carroll
Chad O'Carroll has written on North Korea since 2010 and writes between London and Seoul.
Foreign media based in South Korea have been asked to pay tens of thousands of dollars per month to use North Korean state television, NK News has learned, including fees that will be paid directly to Pyongyang.
The hefty cost of the new satellite service, which is being facilitated by Seoul’s Ministry of Unification (MOU) and the Foundation of Inter-Korea Cooperation, specifically includes the collection of copyright fees which will be paid directly to the DPRK in the future.
That makes it likely that the request would require foreign media to breach multiple layers of the international sanctions regime in order to watch typically free-to-access North Korean television, an analysis of sanctions rules and both experts and government sources indicated.
Yet that’s something the Foundation collecting the cash for its North Korean counterparts firmly rejects, in part citing U.S. domestic legislation as a key factor in exempting the payments from sanctions scrutiny.
For many years the DPRK government-owned Korea Central Television (KCTV) network has been freely accessible anywhere in the world within reach of relayed signals carried on the Thaicom-5 and Intelsat satellites — including through NK News‘s KCNA Watch feature.
Yet local media in South Korea, not including foreign press, have since 2006 been required to pay the Foundation of Inter-Korea Cooperation to use this otherwise free-to-access signal, cumulatively paying it hundreds of thousands of dollars worth of fees.
Things changed in South Korea early 2019, however, when local telecom providers began experimenting with 5G: the strength of the new cell towers caused disturbance to the much weaker Thacom-5 relay of North Korean television.
The interference proved so significant that reliable access to the free-to-access Thaicom-5 signal would no longer be possible in South Korea.
“To get around this, Korea Telecom began relaying North Korean TV on an unaffected satellite frequency in March this year,” Martyn Williams of North Korea Tech explained, with the new signal “aimed at media organizations and journalists so they can continue to monitor North Korean state TV.”
But the new service comes at a major cost: KRW54.5 million (US$44,900) per month to be split between foreign media subscribers in South Korea.
And unlike with the Thaicom-5 and Intelsat relays of KCTV, that figure includes copyright fees to be paid directly to the North Korean government, the Foundation of Inter-Korea Cooperation confirmed to NK News.
“Most of the subscription fee constitutes equipment cost and personnel expenses,” explained Kihun Kim, a spokesperson at the Foundation, in an emailed statement to NK News.
“About 5% of it is a copyrights fee,” he said, which according to the fees published by North Korea Tech would equate to about $26,940 from foreign media over the course of a year.
Amid a spate of missile and nuclear testing, the UN Security Council (UNSC) in September 2017 passed Resolution 2375, which designated the DPRK’s Propaganda and Agitation Department (PAD) with an asset freeze.
Described by the UNSC as having “has full control over the media,” the PAD “engages in or is responsible for censorship by the Government of the DPRK, including newspaper and broadcast censorship.”
As a result, the PAD is thought to have full control over North Korean state television, whose copyright the Foundation of Inter-Korea Cooperation has been monetizing since 2006.
Under UNSC Resolutions 2375 and 1718, South Korea is mandated to freeze the “funds, other financial assets and economic resources” of designated entities like the PAD – including even those assets “that are owned or controlled, directly or indirectly” by it.
Paying North Korean authorities copyright fees via the Foundation of Inter-Korea Cooperation could, therefore, constitute a breach of the UN’s asset freeze designation of the PAD.
“South Korea, as a UN member state… is obligated to enforce the resolutions, using its own independent legal authorities, by freezing all property of the PAD and preventing any economic resources from being provided to it,” said Joshua Stanton, a sanctions specialist and blogger at the One Free Korea website.
But unsurprisingly, the Foundation of Inter-Korea Cooperation believes its efforts to collect North Korean copyright payments do not contravene international sanctions law.
“Copyrights fee that goes to North Korea is not applicable to both of the United Nations Security Council resolution and the United States sanctions on North Korea,” Kim, the Foundation spokesperson, told NK News by email.
“KCTV is under the jurisdiction of the Korea Central Broadcasting Commission (KCBC),” he said.“Unlike the Propaganda and Agitation Department, UNSC Resolution 2375 did not designate the KCBC as a sanctioned entity”.
But though the UN’s designation says PAD controls “all media,” Kim suggested that it was irrelevant because the requirements are based “on the negative system.”
“In other words, the UNSC only sanctions the institutions, persons and materials specified in the resolution,” Kim added, the implication being that copyright payments for a state television network merely under PAD control would be insufficient to constitute a sanctions breach.
For its part, Seoul’s MOU – which is responsible for inter-Korean issues – said: “the ROK government started with the copyright of the North Korean media before the start of UN sanctions in accordance with the domestic law and court precedence and the international norms.”
But due to Seoul’s May 24 Measures, which have prohibited all inter-Korean trade since 2010, the Foundation has since been collecting KCTV copyright fees in a South Korean court account which will be payable to North only when sanctions ease, the spokesperson said.
“So the unification ministry thinks that there is no point in discussing as to whether or not collecting royalties of North Korean materials violates the UN sanctions at this time as the copyright fees have not been paid to the North since 2009 under the measures imposed by the South.”
But if it’s legal to collect funds to pay for North Korea’s provision of a real-time and possibly sanctioned service – on the basis that payments are only released when sanctions are relaxed – the same argument could be used to justify payments to the DPRK for a wide range of other sanctioned or questionable commodities/activities.
Asked, then, if it could assure foreign media whether payments to North Korea via the Foundation would be guaranteed not to constitute UN sanctions violations, the MOU said “the matter of determining whether transactions of private entities violate UN sanctions against the North does not fall under the jurisdiction of the MOU.”
Instead, that responsibility falls to the South Korean foreign ministry (MOFA), who declined multiple times to provide specific answers about whether the Foundation’s collection of money for North Korean authorities might constitute a breach of UN sanctions.
In response to three specific questions on the issue, a spokesperson simply said: “The ROK government has been exerting necessary diplomatic efforts in close cooperation with the international community, including the Sanctions Committee on North Korea, to ensure the full implementation of UN Security Council’s sanctions resolutions against North Korea.”
And though neither the U.S. State Department nor Treasury would comment on the issue for this story, NK News understands from U.S. government sources aware of the issue that payments for North Korean television copyright – even if held under escrow – would likely be considered a breach of sanctions.
Regardless of whether or not the PAD designation might make the Foundation’s copyright collection efforts a breach of UN sanctions, its spokesperson elaborated that a specific U.S. federal regulation gives it an exemption from both UN or unilateral U.S. sanctions.
“The United States explicitly gives exemptions to copyrights (31 CFR Part 510.517 Certain transaction-related to patents, trademarks, copyrights, and other intellectual property),” spokesperson Kim explained by email.
That regulation authorizes the “payment of fees to the U.S. Government or the Government of North Korea” in “connection with a patent, trademark, copyright, or other form of intellectual property protection in the United States or North Korea,” its official text reads.
However, it also states that transactions “by or with the Government of North Korea, the Workers’ Party of Korea, or any other person whose property and interests in property are blocked pursuant to § 510.201(a)” are not allowed as part of this authority, which could still make collection of copyright for the PAD-controlled TV station problematic.
Nevertheless, the Foundation said it believes “the transfer of funds related to the use of intellectual property such as copyright does not apply to sanctions by the U.S. as well as the UNSC Resolution.”
But that interpretation doesn’t wash for all.
“A section in the Code of Federal Regulations cannot override a UN Security Council Resolution,” said Stanton, the independent sanctions specialist.
“Only the UNSC’s 1718 Committee has that authority,” he continued, despite the Foundation’s claims that it did not require an exemption granted by that organization.
Furthermore, Stanton said, legislation cited by the Foundation could make little difference as far as U.S. unilateral sanctions are concerned.
“To the extent an OFAC regulation conflicts with U.S. statute, the statute controls, and here, a broad reading of section 510.517 as permitting payments to the PAD through the United States for intellectual property earned abroad, notwithstanding the PAD’s designation, conflicts with a statute, the North Korea Sanctions and Policy Enhancement Act.”
And in particular, that Act contains multiple points which make the Foundation’s collection of copyright payments for North Korean state television problematic.
“Section 104(a)(4) of that Act requires the designation (and the freezing of the assets of) of a person responsible for censorship in North Korea,” he said.
Furthermore, “section 104(c) requires the blocking of all property of the government of North Korea.”
And “section 104(b)(1)(A)(i) also authorizes the President to “designate … any person that … knowingly engages in, contributes to, assists, sponsors, or provides financial, material or technological support for, or goods and services in support of, any person designated pursuant to … an applicable United Nations Security Council resolution.”
“Statute trumps regulation,” he said.
When pushed further on its interpretation of the exemption in context of Stanton’s points, the Foundation told NK News it believed the Code of Federal Regulations “is a type of code of practice enacted based on North Korea Sanctions and Policy Enhancement Act.”
And as a result, “these two cannot be separated, and are bound to be one.”
For anyone concerned about its collection of copyright fees, the Foundation offered a simple piece of advice: “the most certain way not to pay copyright fees to Korean Central Broadcasting Committee is to not use KCTV footage.”
And though KCTV remains free to access around the world outside of South Korea, the Foundation counseled: “you can’t leave a restaurant without paying after eating there, and if you do not want to pay the restaurant, you should not enter it in the first place.”
Overall, Stanton said the issue raised other questions about South Korea’s overarching intent.
“This revelation will exacerbate concerns in Congress and among policy-makers that South Korea’s current government does not share U.S. interests,” he said.
This, he said, include worries that Seoul is “drifting out of its long-standing alliance with the United States, and is increasingly receptive to Pyongyang’s soft power and influence operations even as Pyongyang intensifies its own censorship.”
Edited by Oliver Hotham
Featured image: Eric Lafforgue