저작권 신탁관리단체의 주인-대리인 문제 –‘총회워싱’현상에 대한 제도적⋅비교법적 고찰 –

Copyright collective management organizations (CMOs) constitute a core institutional mechanism that reduces transaction costs in the copyright market and promotes the use of works through collective rights management and blanket licensing. However, due to their entrusted organizational structure and de facto monopolistic position, CMOs are structurally prone to the classic principal–agent problem. In Korea, in particular, the law mandates that comprehensive rights management be carried out only by trust-based CMOs, and historically allowed only one CMO per sector. This institutional design effectively fostered a legal monopoly in a market already susceptible to natural monopoly. As a result, major CMOs have long maintained a dominant position in the two-sided market for copyright management. Under such conditions, copyright holders, as principals, face significant difficulties in effectively disciplining managerial agents, even where inefficient management, self-dealing, or conflicts of interest arise, because realistic alternative management options are lacking. Consequently, the principal– agent problem is likely to be structurally intensified. Moreover, the general assembly, which should function as an internal control mechanism for mitigating agency problems, has often exhibited reduced authority and limited participation and voting rights. Nevertheless, in both institutional design and practice, there has been a persistent tendency to regard the mere observance of formal procedures of the general assembly as sufficient to confer democratic legitimacy and autonomy on the organization’s decisions and actions. This article conceptualizes this phenomenon as “General-Assembly washing.” Analogous to the notion of greenwashing, general assembly washing refers to a situation in which the general assembly, a collective decision-making body intended to directly reflect the will of members, is structurally designed-through bylaws-to exclude the majority of members from meaningful participation, thereby lacking democratic legitimacy and effective internal oversight, yet the approval of the general assembly is invoked to confer superficial legitimacy on problematic decisions or actions. The article argues that when the institutional characteristics of CMOs, information asymmetry, restrictions on member participation embedded in bylaws, board capture, members’ rational apathy, and the concentration of agenda-setting power are combined, the general assembly is liable to function not as a genuine mechanism of decision-making and internal supervision, but rather as a procedural device that ex post ratifies managerial opportunism or moral hazard. Furthermore, by examining the role of general assembly resolutions in judicial and administrative review, the study highlights that general assembly washing not only distorts internal governance but may also undermine the effectiveness of external oversight. Through a comparative legal analysis of the EU Collective Rights Management Directive, the French Intellectual Property Code, and the statutes of SACEM, a leading French CMO, this article demonstrates that these legal frameworks do not treat the mere existence of a general assembly as an automatic source of democratic legitimacy. Instead, they establish, in advance, institutional conditions under which the general assembly can operate as a substantive internal control mechanism. Building on these comparative insights, the article proposes key elements of model bylaws aimed at preventing general assembly washing, including ensuring the representativeness of the assembly, the substantive realization of member participation, fair and proportionate regulation of voting and proxy rights, clarification of the assembly’s authority, and institutionalization of information disclosure. In addition, it suggests linking the licensing regime applicable to CMOs with bylaw review so as to effectively secure the implementation of such governance structures, and further argues for the institutional introduction of supervisory authorities’ role in presenting or guiding the adoption of model bylaws.