[저작권법위반·업무방해] 상고[각공2016하,618]
In a case where the Defendants, university professors, in collusion with Gap and publishing employees, etc., published the books to add the Defendants, not the author, to the covers of the joint works of Gap et al., and then published the books with the title of the books as they are without the author, and then re-announces the books which are not the author but the author Eul and Byung as the co-principal, thereby making them public under the real name of the non-author, the case holding that the Defendants are liable as co-principals for not only the first publication of the books but also the additional publication.
In a case where the Defendants, university professors, in collusion with Gap and publishing employees, etc., issued a book adding the Defendants, not the author, to the sign of the book, which is a joint work of Gap et al., and then published the book in the sign as they are without any title, thereby indicating the real name of non-authors and disclosing the work to the author, the case holding that the Defendants are liable not only for the first publication but also for the additional publication as co-principals under the Copyright Act, in full view of the following: (a) the concept of publication under the Copyright Act includes the concept of publication; and (b) there is no provision that restricts the first publication; (c) the concept of publication under Article 137(1)1 of the Copyright Act cannot be interpreted by limiting the first publication; and (d) the Defendants did not raise an objection to the publication company after receiving the additional publication and did not request the deletion of name; and (d) the Defendants continued to use it as teaching materials of the college lecture.
Article 30 of the Criminal Act; Article 2 of the former Copyright Act (wholly amended by Act No. 3916 of Dec. 31, 1986; see Articles 2 subparag. 1 and 4(1)); Article 8(1) (see current Article 2 subparag. 24 and 25); Article 15 (see current Article 11(1)); Article 18 (see current Article 11(1)); Article 70 (see current Article 137(1) subparag. 1); Article 99 subparag. 1 (see current Article 137(1) of the former Copyright Act (Amended by Act No. 4717 of Jan. 7, 1994; see current Article 137(1) subparag. 1); Article 2 subparag. 24, 25, Article 4(1), Article 11(1), Article 41 subparag. 1, Article 40 subparag. 1, Article 46(1), Article 30 subparag. 141 and 4 of the Copyright Act
Defendant 1 and one other
Defendant 2 and Prosecutor
Shin Jae-in et al.
Law Firm Barun, Attorneys Seo-ju et al.
Suwon District Court Decision 2015Ra4745 decided June 15, 2016
The judgment of the court below (excluding the part concerning obstruction of business among the part not guilty against Defendant 1) shall be reversed.
Defendants shall be punished by a fine of KRW 15,000,000.
In the event that the Defendants did not pay the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting the amount of KRW 100,000 per day into one day.
To order the Defendants to pay an amount equivalent to the above fines.
1. Scope of the judgment of this court;
A. On March 10, 2014, the lower court rendered a judgment on Defendant 1’s violation of the Copyright Act, Defendant 2’s violation of the Copyright Act on March 10, 2014, Defendant 2’s violation of the Copyright Act on March 10, 2014, and each conviction on obstruction of business. ② Defendant 1’s violation of the Copyright Act on March 10, 2015, obstruction of business, and Defendant 2’s violation of the Copyright Act on March 10, 2015, respectively.
B. The prosecutor appealed only to the part of the judgment below, excluding the part as to the obstruction of business with respect to Defendant 1, and Defendant 1 did not appeal, and Defendant 2 appealed only to the guilty part.
C. Therefore, among the acquittal portion of the lower judgment, the part on Defendant 1’s obstruction of business was separated and finalized, and only the remainder is subject to the judgment of the lower court.
The lower court’s judgment contained in the main text of the Defendant’s charges against Defendant on March 10, 2014, which was found guilty of violation of the Copyright Act on March 10, 2014 】 Defendant 1’s conviction on March 10, 2015 】 (not guilty of violation of the Copyright Act 】 (not guilty of interference with ○○) 】 Defendant 】 (not guilty of violation of the Copyright Act on March 10, 2014 】 Defendant ○○○○○○○○○○ on March 10, 2015 】 Defendant ○○○○○) guilty of interference with ○○ business.
2. Summary of grounds for appeal;
(a) A prosecutor;
1) Legal principles
The concept of “public announcement” under the Copyright Act includes not only the initial publication but also the subsequent publication, and the court below erred in the misapprehension of the concept of “public announcement” as above, which affected the remaining judgment.
2) Unreasonable sentencing
The sentence of the lower court (Defendant 1: a fine of KRW 10 million, Defendant 2: a fine of KRW 15 million) is too uneased and unreasonable.
B. Defendant 2
1) Legal principles
Since the author gave his consent, the crime of violation of the Copyright Act is not established.
2) Unreasonable sentencing
The sentence of the court below is too unreasonable.
3. Determination
A. Judgment on the misapprehension of the legal principle by the prosecutor
1) Summary of this part of the facts charged
On March 10, 2015, the Defendants conspired with Nonindicted 1 note 1, Nonindicted 2 note 2, and Nonindicted 3 note 3) and made the work public by indicating the real name of a person other than the author as the author, by having the Defendants make the joint work of Nonindicted 1, etc. published in the book “○○ Engineering Opening theory” as a joint work of Nonindicted 1, etc. in addition to the author.
2) The judgment of the court below
The court below held that since the current Copyright Act adopts the principle of reckoning up the publication of copyrighted works under the Copyright Act (see Article 40 of the Copyright Act), occupational works (see Article 41 of the Copyright Act), and cinematographic works (see Article 42 of the Copyright Act), the protection period of copyrighted works can be extended without limit to the initial publication. (2) Unlike the punishment for “person who has published copyrighted works under the name and pseudonym of a person other than author” under the former Copyright Act (Article 44), unlike the punishment for “person who has published copyrighted works” under the name and pseudonym of a person other than author,” the current Copyright Act punishs “person who has published copyrighted works” under the name and pseudonym of a person other than author, and that this is also intended to punish “making copyrighted works” other than the act of publication. (3) German Copyright Act adopts the concept of “making copyrighted works” and “making copyrighted works” as well as the concept of “making made public” under the former Copyright Act, and thus, it does not constitute “making public announcement” under the former Copyright Act only for the first time when the term of publication is interpreted or extension of the concept of publication.
A) The concept of publication under the current Copyright Act
현행 저작권법은 ‘공표’의 개념을 ‘저작물을 공연, 공중송신 또는 전시 그 밖의 방법으로 공중에게 공개하는 경우와 저작물을 발행하는 경우’로 정의하고 있고(공표 = 공개 + 발행), ‘발행’은 ‘저작물 또는 음반을 공중의 수요를 충족시키기 위하여 복제·배포하는 것’으로 정의하여( 저작권법 제2조 제24호 , 제25호 참조), ‘공표’가 ‘발행’을 포함하는 개념임을 분명히 하고 있을 뿐이고(공표 ⊃ 발행), ‘발행’이 ‘공표’에 포함되는 경우에는 이를 최초의 발행에 한정한다는 취지의 규정을 두고 있지 아니하다.
B) Relationship with the former Copyright Act
(1) The court below held that, in light of the fact that the former Copyright Act clearly separates the concept of “publication” and “disclosure” and the fact that the former Copyright Act punishs the act of publication, unlike the fact that the former Copyright Act is punishing the act of publication, the current Act shall be deemed to have been amended under the intent to punish the act of publication, not the act of publication.
(2) However, in light of the following circumstances, the above determination by the lower court seems to have derived from erroneous understanding of the intent to amend the current Copyright Act.
(A) At the time of the enactment of the former Copyright Act, the concept of “publication” was defined as “the act of reproducing, selling or distributing a work by reproducing and distributing it” as it does not differ as at the present time, and under Article 70 of the former Copyright Act, the act of “publication of a work by reproducing the name of a person other than the author” was punished.
(B) On December 31, 1986, the Copyright Act was wholly amended by Act No. 3916, Dec. 31, 1986. The amended Act defines the concept of “making a work public” as “where a work is disclosed to the general public by means of public performance, broadcasting, display, or any other means, and where a work is made public ( = publication + publication + publication), and Article 99 provides that “a person who has made a work public” under the title “an act of making the work public under the real name or pseudonym of a person other than the author as the author.”
(C) Under Article 137(1)1 of the current Copyright Act, while maintaining the concept of “disclosure,” the term “a person who has made a work public” is punished by “a person who has made a work public under the real name or pseudonym of a person other than the author” under the title of “Punishment.”
(3) In light of the above developments of the amendment, the amended Copyright Act does not intend to punish “publication” rather than “publication,” but rather, punish the act of “illegal publication” as the type of the copyrighted work so as to make it impossible to protect the public’s trust in the name of the author. Therefore, it is reasonable to view that the amended Copyright Act intended to punish all the acts of “making public” including the act of “illegal publication,” such as the act of “making public.”
A person shall be appointed.
C) Relationship with the German Copyright Act
(1) As pointed out by the lower court, the fact that the German Copyright Act separates the concept of “public announcement” and “public publication”, and the fact that the German Copyright Act adopts the principle of reckoning the period of public publication with respect to anonymous or pseudonymd works is recognized.
(2) However, it is not appropriate to interpret the concept of "publication" and "publication" under the German Copyright Act, however, in comparison with the legal system of the Republic of Korea, such as ① the requirements for consent of the person with authority, ③ the characteristic of emphasizing the possibility of access to the general public, as well as the concept of "publication" with respect to the concept of "publication", as it has a strong color, and thus, it is not appropriate to interpret the concept of "publication" and "publication" under the German Copyright Act. Furthermore, since the German Copyright Act does not have a provision punishing the act of improper publication or publication other than the act of adding an indication to the work of art without permission of the author, it is not very helpful to interpret Article 137(1)1 of the Copyright Act (11) of the German Copyright Act. (3) It is difficult to view that the interpretation of Article 137(1)1 of the German Copyright Act as the first publication and the subsequent publication are included in the concept of "publication" under Article 137(1)1 of the Copyright Act, which does not lead to the interpretation of the German Copyright Act.
D) Relationship with the Japanese Copyright Act
(1) As pointed out by the lower court, ① the Japanese Copyright Act separates the concept of “public announcement” and “publication”, ② the fact that the Japanese Copyright Act adopts the principle of reckoning up the period of public announcement with respect to “unwritten or vindicateed works,” “collectively named works,” and “motion picture works,” is recognized.
(2) However, unlike the punishment of “a person who has published” a work with the name name of a person other than the author” under the former Japanese Copyright Act, it is reasonable to interpret the concept of “public disclosure” under Article 137(1)1 of the Korean Copyright Act, based on the interpretation theory of the Japanese Copyright Act, by punishing “a person who has distributed” the reproduction of a work indicating a person other than the author as the author, thereby preventing the occurrence of such problem as pointed out by the court below. (2) In light of the fact that: (a) the first publication and the subsequent publication are included in the “public disclosure” under Article 137(1)1 of the Copyright Act; and (b) even if interpreting that both the first publication and the subsequent publication are included in the “public disclosure,” it is difficult to deem it reasonable to interpret the concept of “public disclosure” under Article 137(1)1 of the Korean Copyright Act based on the interpretation theory of the Japanese Copyright Act.
(e)the initial period of publication and the protection period of copyright;
(1) The lower court did not limit the concept of “public disclosure” under Article 137(1)1 of the Copyright Act to the initial publication, but may have the right to extend the protection period of “a anonymous or pseudonymous work,” “occupational work,” or “cinematographic work,” without limitation.
(2) However, the purpose of the principle of reckoning up the time of publication adopted by Articles 40, 41, and 42 of the Copyright Act is to calculate the duration of protection from the time of publication, and the purport of extending the duration of protection every time the publication is made is not deemed to be 15).
(3) Therefore, the lower court’s determination that the term of “public disclosure” under Article 137(1)1 of the Copyright Act is not limited to the initial publication, but is in possession of an extension of the term of protection of a work in a pseudonym or pseudonym, an “occupational work,” or a “cinematographic work,” without limitation, is unreasonable.
4) Therefore, the prosecutor’s above misapprehension of legal principles is with merit.
B. Judgment on Defendant 2’s assertion of misapprehension of the legal principle
1) Defendant 2 asserts that “Inasmuch as Nonindicted 1, the original author, gave his consent, Defendant 2 does not constitute a violation of the Copyright Act.”
2) On the other hand, Article 137(1)1 of the Copyright Act only punishs a person who is not the author to make a work public under the real name or pseudonym of the person who is not the author, without the consent of the author. ② The Copyright Act has a separate penal provision regarding copyright infringement (see Article 136(1)1 of the Copyright Act); ③ “public disclosure of a work under the real name or pseudonym of a person who is not the author” can be punished without a complaint by the victim (see Article 140 subparag. 2 of the Copyright Act); ④ “public disclosure of a work under the real name or pseudonym of a person who is not the author” is punished in light of the fact that the author’s trust in the name of the author to protect the public trust using the work.”
3) Therefore, Defendant 2’s assertion of legal principles is without merit.
4. Conclusion
Therefore, among the non-guilty parts of the judgment of the court below, an appeal based on the misapprehension of the legal principles by the prosecutor as to the violation of the Copyright Act among the non-guilty parts of the judgment of the court below is justified. This part of the facts charged is one type of punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act. Thus, without examining the convictions against the Defendants and the concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below under Article 364(6) of the Criminal Procedure Act (excluding the part concerning the obstruction of business among the non-guilty parts against Defendant 1 who did not appeal by the prosecutor) is reversed, and the part concerning the above defendant is again decided as follows after the pleading (this appeal by the prosecutor is without merit, but the part concerning
피고인 1은 ◇◇대학교 에너지환경공학과 교수, 피고인 2는 ▽▽대학교 철도행정토목학과 교수, 공소외 1은 ◁◁대학교 환경공학과 교수, 공소외 4는 ▷▷대학교 보건환경학과 교수, 공소외 5는 ◎◎대학교 융합환경과 교수, 공소외 2는 파주시 (주소 1 생략) 소재 출판사인 △△기술교역 및 □□문화사의 영업직원, 공소외 3은 위 △△기술교역 및 □□문화사의 영업직원이다.
1. Defendants 1 and 2
Around February 2014, Nonindicted 1 received a request from Nonindicted 2 to add professors, who are not the author, to the book “○○ Engineering Opening loan” to the joint works of Nonindicted 1, 6, 7, and 8 above-mentioned Nonindicted 1, Nonindicted 2014.
around December 2013, Defendant 1 received a request from Nonindicted 3 to add the Defendant himself as an author, not the author, in the above book, to the above book. Defendant 2 received a request from the above Nonindicted 2 to add the Defendant himself as an author, not the author, in the above book, on January 2014, and consented to it. Nonindicted 4 and Nonindicted 5 received a request from the above Nonindicted 2 to add Nonindicted 4 and Nonindicted 5, not the author, in the above book, as an author, around February 2015.
In March 10, 2014, Non-Indicted 2 and Non-Indicted 3 published the book “○○ Engineering Opening loan” in the name of △△ Technology Trade, which added Non-Indicted 1, Non-Indicted 6, Non-Indicted 7, Non-Indicted 8, Non-Indicted 1, and Defendant 2 as the author of “○○ Engineering Opening loan” to the book, although Defendant 1 and Defendant 2 are not the author of “○○ Engineering Opening loan”, Non-Indicted 1, Non-Indicted 6, Non-Indicted 7, Non-Indicted 8, and Defendant 1 and Non-Indicted 2 as the actual author of “○○ Engineering Opening loan,” and Non-Indicted 4, and Non-Indicted 5 issued the so-called “○○○ Engineering Opening loan” in the name of “○○ Engineering Construction loan,” which was issued by Non-Indicted 4, Non-Indicted 5, as well as the author of “○○ Engineering Opening loan.”
Accordingly, the Defendants conspired with the above Nonindicted 2, 3, 1, 4, and 5 in sequence, and made the work public by indicating the real name of a person who is not the author as the author, respectively.
2. Defendant 2
Around August 2014, the Defendant: (a) around 2014, the Defendant indicated the Defendant as a co-author and submitted to the person in charge of research and assessment of teachers’ work experience in the △△ University, which was published on March 10, 2014, as if he was the Defendant’s author, a written “○○ Engineering Opening Opinion” that was published on March 10, 2014.
As a result, the Defendant interfered with the task of evaluating teachers' job performance by a deceptive scheme (including all evaluations and examinations that are utilized to evaluate the above achievements, such as re-election, promotion, retirement age guarantee, research funds payment, selection of teaching staff for the year, selection of outstanding researchers in research, reward, etc.).
1. Defendants’ partial statement in the original judgment
1. Each legal statement of the witness of the court below, Nonindicted 2 and Nonindicted 3
1. Statement of the suspect interrogation protocol on Nonindicted 1 by the prosecution
1. Each description of an investigation report (the “○○○ Engineering General Opinion”, Defendant 2’s research performance, etc.), one copy of a document of cooperation in investigation (Evidence No. 439), and one copy of a document of reply to the ▽▽△ University University;
1. Each description and existence of the relevant two books;
1. Article relevant to the facts constituting an offense and the selection of punishment;
A. Defendant 1: Article 137(1)1 of the Copyright Act, Article 30 of the Criminal Act, the selection of fines, and the selection of fines
B. Defendant 2: Article 137(1)1 of the Copyright Act; Article 30 of the Criminal Act (the violation of the Copyright Act); Articles 314(1) and 313 of the Criminal Act (the violation of the Copyright Act); the selection of fines, respectively.
1. Aggravation for concurrent crimes;
Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act
1. Detention in a workhouse;
Defendants: Articles 70(1) and 69(2) of the Criminal Act
1. Order of provisional payment;
Defendants: Article 334(1) of the Criminal Procedure Act
16) Judgment on the Defendants’ assertion
1. As to the assertion that the issuance made on March 10, 2015 did not participate in the issue
A. The Defendants asserted that “The Defendants shall not be held liable as a co-principal in relation to the issuance made on March 10, 2015, inasmuch as they agreed to add the Defendants to the official seal at the time of the publication on March 10, 2014, but there is no express consent at the time of the publication on March 10, 2015.”
B. (1) In a public-private partnership, one of the public-private partnerships is liable as co-offenders for the result of the public-private partnership, if it could have reasonably predicted that the other public-private partnership would engage in such an act even if the other public-private partnership did not specifically invite other public-private partnerships to commit such act (see Supreme Court Decision 88Do1844 delivered on December 13, 198).
(2) In a case where one of the competitors has left from a public contest before the others reach the action of the contest, he shall not be held liable as a co-principal with respect to the subsequent act of the contest. However, the renunciation in the public contest need to resolve a functional control over the functional act performed by the contest. As such, when the contest participated in the public contest led it to the conclusion of the execution of another contest, it shall not be deemed that the contest has deserted from the public contest unless he has removed the influence on the execution, such as actively endeavoring to prevent the crime, and thereby, has actively made efforts (see Supreme Court Decisions 2008Do1274, Apr. 10, 2008; 2010Do6924, Sept. 9, 2010, etc.).
C. In light of the following circumstances acknowledged by the lower court and the evidence duly admitted and examined by the lower court, the Defendants are held liable as a co-principal for the publication made on March 10, 2014 as well as the publication made on March 10, 2015.
(1) The core of Non-Indicted 1 (author), Non-Indicted 2, Non-Indicted 3 (each publishing company’s employee), and the Defendants (each professor), is to increase the sales of the book in addition to the Defendants as a co-author, and to increase the sales of the book by adding the Defendants to the co-authors. ② The original author is to enable the Defendants to receive more taxes, and ③ the Defendants to use the book as a teaching material instead of facilitating sales by adopting it as a teaching material.
(2) Defendant 1 took the book “○○ Engineering Opening loan” published on March 10, 2014 and March 10, 2015 from publishing company. Defendant 1 took the book “○○ Engineering Opening loan” published on March 10, 2014 and took the book as teaching materials each year (see, e.g., right 1st of investigation records).
(3) Defendant 2 used the book “○○ engineering outlined” published on March 10, 2014 as the teaching materials for the first semester in 2014, the second semester in 2014, and the second semester in 2015. Defendant 2 took the book “○○ engineering outlined” published on March 10, 2015 as the teaching materials and took lectures even at the time of police investigation (see, e.g., right 1 to investigation record).
(4) Defendant 1 received a letter “○○ Engineering Opening loan” published on March 10, 2015, but did not raise any particular objection to the publishing company’s side (see, e.g., title 1, title 291 of the Investigation Records).
(5) After receiving the book “○○ Engineering Opening loan” published on March 10, 2015, Defendant 2 did not request the publishing company to delete its name, but continued to use the book as a teaching material for the second semester course in 2015 (see, e.g., title 1, 261, and 262 of the Investigation Records).
(6) The Defendants had experience in issuing the books as shown below through the instant publishing company.
Defendant 2, on September 10, 201, on September 1, 2012, 201, the date of issuance of the name card in the main text, Defendant 3, and Defendant 2, on March 10, 201, on the ○○ Pollution Test 2, Sept. 10, 2012, respectively, and on September 10, 201, Defendant 2, on March 10, 201.
2. As to the assertion that the issuance in March 10, 2015 constitutes an act ex post facto ex post facto action.
In order to constitute an act after-the-counter act, the amount of infringement of legal interests by the act after-the-counter act shall not be increased. As long as more students purchase the book of this case than the previous one due to the issuance on March 10, 2015, the assertion that the issuance on March 10, 2015 constitutes an act after-the-counter act is not accepted.
In light of the fact that even though the Defendants were aware that they were the primary offenders, they were the highest person and the educator who should be seen as exemplary as professors, they were absent from the desire to seek illegal private interests, and agreed to leave the books by indicating them as a public figure as if they were engaged in, and submitted them as data for evaluation of teachers' duties, the Defendants should be punished against the Defendants.
However, inasmuch as equity with other cases of the same type of crime as this case already confirmed cannot be considered and thus, a fine shall be selected. However, the sentence shall be determined as ordered in full view of various circumstances, including the Defendants’ age, details of the crime, and circumstances after the crime, which are the conditions for sentencing as shown in the argument of this case.
Judges Sung Ho-ho (Presiding Judge) et al. and leaptables
Note 1) One of the original authors of “○○ Engineering General”.
2) Publishing companies are employees of △△ Technology Trade and △ Culture Companies.
3) Publishing companies are employees of △△ Technology Trade and △ Culture Companies.
Note 4) The term “former Copyright Act” was enacted by Act No. 432 on January 28, 1957 (hereinafter “former Copyright Act”).
5) The name of the formal title is “copyright and neighboring Protection Right Act (copyright ?ber Urhembberm mtchemmmmmbe (Urhembmmmmmbe)” and the name of the formal title is “Modern Copyright Act” (hereinafter “Mod Copyright Act”).
(6) For the purpose of Article 8 (Publication) (1) of the former Copyright Act, the term “publication” means the act of reproducing and selling or distributing a work. The author of a work which is not made public under Article 15 (Right of Publication) of the former Copyright Act has the right to freely decide to make it public or not to make public.
7) A person who has published a work in the name or title of a person other than an author under Article 70 of the former Copyright Act shall be punished by a fine not exceeding 500,000. A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than one year or by a fine not exceeding 10,000 won.
8) For the purpose of Article 2 of the former Copyright Act (amended by Act No. 2 of the same Act), the term “works” means documents, musical instruments, paintings, calligraphic works, calligraphic works, sculptures, architecture, architecture, diagrams, diagrams, models, photographs, musical music, musical works, musical music, singing, singing, singing, singing, singing, music, sound recording, tape recording, film, and all other objects belonging to the scope of learning or art. The following examples are as follows: ① Works as referred to in this Act: < Amended by Act No. 1093, Jan. 1, 201; Act No. 13885, Apr. 3, 2008; Act No. 5564, May 5, 2015; Act No. 8577, Aug. 1, 2016; Act No. 8577, Feb. 19, 2015>
9) Article 6 (Publication Works and Publication Works) (1) of the German Copyright Act provides that the publication of a work is a case where the general public has access to the work with the consent of its authorized person. (2) The publication of a work is a case where the reproduction of the work is made in a sufficient quantity and is provided or traded to the general public with the consent of its authorized person. In addition, the work of art is a case where the original or reproduction is made continuously accessible to the general public with the consent of its authorized person.
10) Article 66 of the German Copyright Act (Article 66 of the German Copyright Act) ① In the case of anonymous or pseudonymous works, the copyright ceases to exist after the lapse of 70 years from the date of publication. It is the case where the copyright ceases to exist after the lapse of 70 years from the date of creation is the case where the relevant work has
11) Article 107 of the German Copyright Act 111) ① A person who adds an indication of the author (Article 10(1) to the original of a work of art or distributes the same original without the consent of the author, a person who adds an indication of the author (Article 10(1)) or distributes a copy or a copy so attached (Article 10(1)) in a manner that has the original appearance of the work of art or a modified work, or who distributes such a reproduction or modified work, shall be punished by imprisonment for not more than three years or by a fine: Provided, That this shall not apply where the act is more severe punishment under other provisions. (2) A person who attempts to commit such act.
12) Article 3 of the Japanese Copyright Act regulates publication of copyrighted works, and Article 4 of the publication of copyrighted works.
13)see Articles 52, 53, and 54 of the Japanese Copyright Act.
14) A person who distributes reproduction of a work (including reproduction of a derivative work in which the real name or well-known defense of a person other than the author of the original work is indicated in the name of the author of the original work) indicating the real name or well-known defense of a person other than the author of the original work under Article 121 of the Japanese Copyright Act shall be punished by imprisonment for not more than one year or by a fine not exceeding one million won, or both.
15) For example, Article 766(1) of the Civil Act provides that “a claim for damages caused by a tort shall expire by prescription if it is not exercised within three years from the date when the injured party or his/her legal representative becomes aware of the damages and the perpetrator.” However, the Supreme Court has the same interpretation as “the extinctive prescription runs from the time when the Plaintiff becomes aware of the damages and the perpetrator” (see, e.g., Supreme Court en banc Decision 66Da615, Jun. 9, 196).
Defendant 16) Although Defendant 1 did not file an appeal, as long as the court below accepted the prosecutor’s appeal on the violation of the Copyright Act, which was pronounced not guilty, and pronounced guilty, it is necessary to judge the above Defendant’s assertion.