[2] The meaning of "amount equivalent to the amount ordinarily obtained by exercising the right" under Article 93 (3) of the former Copyright Act, and the method of calculating the amount in the case of musical works

[2] The case holding that Article 93 (3) of the former Copyright Act (amended by Act No. 6134 of Jan. 12, 200) provides that the holder of author's property right, etc. may claim compensation for damages in addition to the amount of damages under paragraph (2) and the amount equivalent to the amount ordinarily accrued from the exercise of his/her right. Here, the amount equivalent to the amount ordinarily accrued from the exercise of his/her right refers to the amount objectively reasonable amount that the infringer would have paid as the cost of exploitation if he/she had obtained permission for exploitation of the work, and the musical work is different from the amount of his/her work's work's work's work's expression and mass figures, so if the copyright owner does not enter into a contract for exploitation of the work in question or receive the royalty from the person who intends to use the work in question, it may be deemed that the royalty should be calculated based on the ordinary amount of damages under the contract for exploitation of the work in question, barring special circumstances where the copyright owner would have agreed to the amount of damages in collusion with the other party.

(a) Fact-finding on copyright infringement;

Based on its evidence, the court below rejected the plaintiff's assertion that there was no evidence to acknowledge that the plaintiff's reproduction of each of the works of this case without permission from the original author or the plaintiff from September 28, 1990 to May 18, 197, and then manufactured and sold the reflecting cycles as shown in the table No. 2 of the judgment of the court below, as shown in the table No. 1 to 6 of the above list, since the plaintiff acquired each of the works of this case from the author or author of this case as shown in the table No. 1 of the judgment of the court below, and between May 20, 196 and December 24, 196, the acquisition of each of the copyrighted works of this case was registered on the Ministry of Culture and Tourism (the culture and sports division at the time). However, the defendant submitted the list No. 1 to 37 of this case, and there was no evidence to acknowledge that there was no other evidence to acknowledge that the plaintiff's reproduction of each of the copyrighted works of this case was against the plaintiff No. 17 of this case.

B. As to the defendant's liability for damages

The court below rejected the plaintiff's assertion that the plaintiff is liable to compensate the plaintiff for damages suffered by the plaintiff due to the act of infringement of copyright since the defendant sold a reflect cycle containing each of the works of this case without the plaintiff or the original author's permission from May 18, 1997 after the plaintiff's registration of transfer of copyright was made, and that the plaintiff can claim damages against the plaintiff prior to the plaintiff's registration of transfer of copyright. The plaintiff's assertion that even if the plaintiff was transferred the copyright of each of the works of this case from the original author, the plaintiff can not be deemed to have acquired the right to claim damages due to the tort that the original author acquired against the third party before transfer, and even if the plaintiff's above assertion that the plaintiff was transferred the plaintiff's damage claim against the defendant of the original author, the plaintiff did not have any evidence to acknowledge that the plaintiff was transferred the plaintiff's damage claim against the original author, that is, the original author notified the defendant of the transfer of the claim or that the defendant consented to the transfer of the right to the original author.

C. As to the scope of the defendant's liability

The court below rejected the plaintiff's claim that the amount of damages suffered by the plaintiff is 00 won or more for each of the copyright rights of 100 won or more for the non-party 6's use of copyrighted musical works, and that the plaintiff's use fee of 1,50,000 won or more for each of the non-party 6's use of copyrighted musical works is 1,00 won or more for each of the non-party 6's use fee of 0-1,00 won or more for each of the non-party 6's use period for each of the above 0-1,00 won or more for the non-party 6's use of copyrighted musical works, and that the non-party 1's use fee of 0-1,000 won or more for each of the above 0-1,000 won or more for each of the non-party 6's use of copyrighted musical works is 1,000 won or more for each of the non-party 1,000 won.

2. Regarding ground of appeal No. 1

Examining the relevant evidence compared with the records, the reflect cycle in which the defendant copied and recorded each of the works of this case is limited to Class 7 as stated in the judgment below, and the judgment of the court below that there is no evidence that the plaintiff reproduced and stored each of the works of this case in the reflect cycle of the remaining 17 kinds asserted by the plaintiff is just and it is not erroneous in the finding of facts in violation of the rules of evidence as otherwise alleged in the ground of appeal.

3. Regarding ground of appeal No. 2

Even if the original author transferred the copyright to another person, barring any special agreement, it cannot be deemed that the original author acquired the right to claim damages from the original author due to the third party’s copyright infringement before the transfer, and even if examining the record, there is no evidence to find that the Plaintiff received the claim for damages from the original author against the Defendant or met the requirements for setting up against the transfer of the right. Therefore, the court below is just in rejecting the Plaintiff’s assertion that the Plaintiff had the right to claim damages against the Defendant prior to the transfer registration of the copyright, and there is no error in the misapprehension of legal principles as to the scope of the right of the assignee, as otherwise alleged in

4. As to the grounds of appeal Nos. 3 and 4

Article 93(3) of the former Copyright Act (amended by Act No. 6134, Jan. 12, 200) provides that the holder of author’s property right, etc. may claim compensation for damages with an amount equivalent to the amount ordinarily accrued from the exercise of his/her right, in addition to the amount of damages under paragraph (2). Here, the amount equivalent to the amount ordinarily accrued from the exercise of his/her right should be deemed as the amount objectively equivalent to the amount the infringer would have paid if he/she had obtained permission for use of the work. [See Supreme Court Decision 9Da5052, Jun. 26, 2001; Supreme Court Decision 9Da5052, Jun. 26, 2001; Supreme Court Decision 9Da5052, Jun. 26, 2001). If the copyright holder entered into a contract for damages with the person who intends to use the work in question and the amount of damages agreed upon by the other party in collusion with the copyright owner, barring any special circumstance that the copyright holder would be entitled to claim damages.

According to the evidence No. 7-2, evidence No. 8-2, evidence No. 1, 11-9, and evidence No. 11-12 of the court of first instance employed by the court below and the testimony of Non-party No. 2 of the witness of the court of first instance, it can be found that the plaintiff or the plaintiff's husband and non-party No. 2 who entered into a copyright consignment contract with the plaintiff and the manufacturer of the non-party No. 2 agreed to collect a certain fee and received a certain fee. If the plaintiff permitted to use musical works, the court below recognized that the court below paid a certain fee of 1,00,000 won or 1,50,000 won for each time when the plaintiff used the musical works without permission or without permission. Thus, the court below should have deliberated whether the above fee was paid for the use of the copyrighted works for the same purpose as the order of provisional use or for similar purposes, and should have determined the amount of the fee without permission by the plaintiff based on the legal reasoning as to the damages amount of the plaintiff's use without permission.

5. Therefore, among the part against the plaintiff in the judgment below, the part against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)