The defendant shall pay to the plaintiff 26,83,33 won with 5% interest per annum from March 14, 2006 to October 2, 2007, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 10% of the total costs of litigation shall be borne by the Defendant, and the remainder by the Plaintiff, respectively.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The defendant shall pay to the plaintiff 147,975,00 won with 20% interest per annum from the day after the copy of the complaint of this case was served on the plaintiff to the day of complete payment (the plaintiff's claim was reduced at the trial).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 140,975,000 won with 20% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

The following facts are not disputed between the parties, or may be recognized by comprehensively taking into account the overall purport of the arguments and video images as stated in Gap evidence (including paper numbers), Eul evidence (including paper numbers), Eul evidence 4, 11, and 12:

(a) Operation of the Plaintiff’s web site and posting of photographic works;

The Plaintiff, as a photographer, opened and operated “(1 omitted)” and “(2) website (hereinafter “Plaintiff’s website”) for the purpose of posting and leasing the photographic works taken by himself/herself, and the website is divided into about 10 parts of the Plaintiff’s photographic works, including epins, winds, sights, diameters, and construction. The website is divided into about 765 x 510 graphics (pixel and the minimum graphics comprising the screen, referred to as “heat,” and its numerical value is high, and the maritime level is high).

B. The defendant's web site operation and the posting of photographic works

(1) The Defendant, a corporation established for the purpose of online service providing business, etc., opens and operates “www. contribution.com” (hereinafter “Defendant’s web site”). The Defendant’s web site has provided search services by means of searching and converting the image files posted on various Internet web sites, tables, etc. into the Defendant’s server to cut off or convert them into 116 x 86 graphic images (hereinafter “Tchie image”).

(2) From May 2005, in order to meet the needs of Internet users who want to properly display the above images, the Defendant stored the original image that was searched in its server by converting it into 400 x 300 graphics (hereinafter “scam image”), and then the Internet user stored it in its server. If the Internet user characters the image of Dozine, then the Defendant’s website posted a relatively detailed image with a relatively high maritime level, and further, by providing the Internet user with the detailed image that is automatically circulated at a certain time at the Internet user’s option, the Defendant made it possible for the Internet user to detect the image, such as a photographic work.

(3) From May 2005 to March 2006, the Defendant reproduced and converted image files based on the Plaintiff’s 203 copies of photographic works (hereinafter “the instant photographic works”) from May 2005 to March 2006, without the Plaintiff’s permission, and posted the Defendant’s detailed image of the instant photographic works on the Defendant’s website to unspecified Internet users.

2. Occurrence of liability for damages;

A. Infringement of copyright and establishment of liability for damages

According to the above facts, the copyright of the photographic work of this case, which is the work created by the plaintiff, is owned by the plaintiff, and the defendant violated the plaintiff's copyright by reproducing, displaying, and transmitting the photographic work of this case without the plaintiff's permission. Thus, the defendant is liable to compensate the plaintiff for damages incurred therefrom, barring special circumstances.

B. Judgment on the defendant's argument

(1) The defendant asserts that his image search program access only to a public image file and search and collect it, and that it does not search and collect it by the day of the rejected image, and that it does not have any intention or negligence on copyright infringement.

However, at the same time as the operator of the Internet search portal site, the Defendant is obligated to verify whether the detailed image provided by him/her infringes on a third party’s copyright, and there is no evidence to deem that the Defendant fulfilled the above obligation. The mere fact that the image search service and detailed image provision service are operated as an automated system cannot be deemed as having been negligent in infringement on the copyright. Thus, the Defendant’s above assertion is without merit.

(2) In other words, the defendant asserts that the act of reproducing the photograph of this case and displaying it in a detailed image in order to provide Internet users with image search service constitutes a legitimate quotation of the work publicly announced under Article 25 of the Copyright Act, and thus, the infringement of the plaintiff's copyright is not constituted.

Article 25 of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006; hereinafter the same) provides that a work already made public may be quoted for news reports, criticism, education, research, etc., in conformity with a fair practice within a reasonable scope. Whether a work is made in conformity with a fair practice within a reasonable scope shall be determined by comprehensively taking into account the purpose of quotation, the nature of the work, the contents and quantity of the quoted work, the method and form that contains the cited work, the general concept of the user, whether the demand for the original work is replaced (see Supreme Court Decision 97Do227, Nov. 25, 1997).

On the other hand, this case’s photographic work is a work disclosed to many unspecified persons via the Plaintiff’s website, and the search service provided by the Defendant is performing the function of allowing Internet users to easily access the necessary information. However, unlike the existing image on May 2005, the detailed image provided by the Defendant to Internet users from around May 2005 depends on 400 x 300 graphics, and it is replaced with the core part of the original photographic image in terms of the cited contents and quantity. The Defendant’s function of the slot shock provided from around the above time is automatically circulated in a certain range of image and automatically circulated by the Plaintiff’s website, thereby allowing Internet users to easily access the Plaintiff’s copyrighted work, and thus, the Defendant’s above act cannot be seen as a legitimate quotation of the work as provided by Article 25 of the former Copyright Act. Therefore, the Defendant’s assertion is without merit.

(3) Finally, the defendant asserts that he is an online service provider provided under Article 77(1) of the former Copyright Act, and that he is not liable under the above provision, with the knowledge of the infringement of copyright against the plaintiff, immediately ceased to use the image of the photographic work of this case.

Article 77(1) of the former Copyright Act provides, “Where an online service provider has prevented or suspended the reproduction or transmission of copyrighted works, etc. with the knowledge that the copyright, etc. is infringed due to the reproduction or transmission of copyrighted works, etc. by another person in connection with the provision of services related to the reproduction or transmission of copyrighted works, etc., the responsibility of an online service provider for infringement of copyrighted works, etc. by another person may be mitigated or exempted.” This case does not relate to the reproduction, display, and transmission of copyrighted works, etc. by “other person” as defined in the above provision, but rather to the act of reproduction, display, or transmission by the Defendant himself without permission, the Defendant’s assertion on the different premise

3. Scope of damages.

Furthermore, we examine the scope of damages that the Defendant is liable to compensate for to the Plaintiff.

Article 93(2) of the former Copyright Act provides, “When an author’s property right holder, etc. claims compensation from a person who has intentionally or negligently infringed his/her right, the amount of money which he/she would normally be entitled to receive by exercising his/her right may be claimed as the amount of damages suffered by the author’s property right, etc.” In this context, the amount equivalent to the amount which the infringer would normally be entitled to receive by exercising his/her right refers to the amount objectively equivalent to the amount which the infringer would have paid as the price for using the work if he/she would have obtained permission for using the work. In cases where the author does not enter into a contract for using the work in question or have received the user fee, the amount of the royalty which is generalized in the industry may be considered as the basis for calculating the amount of damages caused by the infringement. However, in cases where the copyright holder entered into a contract for using the work in a similar form as the infringement, due to special exceptional circumstances, or in collusion with the other party in a lawsuit seeking compensation for damages caused by infringement, the amount of damages determined as the copyright holder would normally be 196.

The plaintiff does not have the object of copyright infringement based on 203 copies, the quantity of the photographic work, which is the original work, but rather on the basis of the transactional practices individually set according to the place and use of the photographic work, the defendant's assertion that the amount of the photographic work should be 560 copies, which are the image quantity of the photographic work, should be considered as 560 copies, considering the circumstances in which the defendant used the same photographic work for other purposes in multiple web pages, and this court paid the plaintiff's damages claim in Seoul High Court case (Seoul High Court Decision 2006Na24171 delivered on December 26, 2006) on the ground that the user fee per head of the plaintiff's photographic work was recognized as 30,000 won per annum from the plaintiff's after the ground that it was recognized as 147,975,000 won per annum of the infringing work x about 560 x 10.569 months per annum 30,12 months per annum).

Therefore, with respect to the part of the plaintiff's above assertion about the quantity of the object of copyright infringement, it is recognized that the defendant reproduced and converted the image exceeding the above quantity on the basis of Chapter 203 of the photographic work of this case, which is the original work, on its website, and posted it on several web pages. However, the defendant merely posted a duplicate image on the same original work on several web pages, the defendant's assertion that the object of copyright infringement should be recognized multiple times according to the quantity of the reproduced and posted image regardless of the specific quantity of the original work, is without any legal basis, and this part of the plaintiff's assertion that the object of copyright infringement should be recognized.

Next, according to the Plaintiff’s above assertion that the user fee per page of this case should be KRW 30,00,000 per annum. According to the Plaintiff’s health stand and evidence Nos. 52-1 (Judgment), the Plaintiff made 10,000 per annum as its counter-party and 20,000 won per annum from February 2, 2002 to October 2002, this court acknowledged the Plaintiff’s damages liability for damages by regarding the Plaintiff’s photograph Nos. 63 per annum as 30,00 won per annum of this case’s photograph 63,00 won per annum. Meanwhile, in light of the overall purport of the arguments, it is recognized that online photograph sellers set the user fee per page of this case’s photograph 165,00 won per annum in case of its original image x 20,000 won per annum in case of its original image x 30,000 won per annum in case of its original image x 20,000 won per annum in case’s of this case’s photograph.

In full view of the legal principles and facts as seen earlier, it is reasonable to view that the Defendant’s use fee for the Plaintiff’s photographed works during the period of infringement exceeds KRW 200,000 per annum, which is about 2/3 of the recognized amount at the time of 202 (Article 94 of the former Copyright Act). The amount of damages that the Defendant is liable to compensate the Plaintiff is KRW 33,83,333 ( = infringing works x 203 x x 10 months x 200,000 per annum x 12 months x 200,000 won per year).

Therefore, the defendant is obligated to pay to the plaintiff the above damages amounting to KRW 33,833,333 and damages for delay.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed without merit. Since the part against the plaintiff, which is ordered to pay additional amounts under the judgment of the court of first instance, is unfair with different conclusions, the part of the judgment against the plaintiff is revoked. Accordingly, the defendant's appeal of this case shall be revoked, and it shall be decided as per Disposition by the court below, since March 14, 2006, it is obvious that it is reasonable for the defendant to dispute about the existence and scope of the defendant's obligation to pay damages to the plaintiff from March 24, 2006 to October 2, 2007, which is the date of the decision of this case, 5% per annum as stipulated in the Civil Act and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of complete payment, and the remaining appeal of the plaintiff shall be dismissed as it is without merit.

Judges Lee Sung-ho (Presiding Judge)