[2] The meaning of "public performance" under Article 2 subparagraph 3 of the Copyright Act, which means public disclosure to the general public

[3] Whether allowing customers to use a musical work recorded or recorded in a singing machine constitutes "public performance of a work" (affirmative)

[2] According to the provisions of Article 2 subparagraph 3 of the Copyright Act, the term “public performance” refers to the disclosure of a work to the general public by acting, musical playing, singing, singing, singing, singing, screening, or by any other means, and includes the reproduction of a recording of a public performance, broadcasting, or musical performance to the general public. Here, the term “public” refers to the disclosure of a work to the general public by spreading or communicating the work to many and unspecified persons by means of an electronic device, etc., in a public place without any restriction, or in a place where many and unspecified persons gather more than the ordinary family and friendship, in addition to the degree that they pay for fees, or where they are not gathered at the same time.

[3] Even though the division of singing rooms is merely a small scale to accommodate more than 4 to 5 customers, insofar as any ordinary customer has allowed customers to exploit the copyrighted musical work recorded or recorded in singing machines in a singing room which is an open place where only within the fee can be used without restriction, it constitutes an act of public performance by disclosing the copyrighted work to the general public.

1. On the first ground for appeal

The Korea Music Copyright Association (hereinafter only referred to as the "Association") which is a copyright management service provider for musical works, permits the producers to use musical works after receiving fees from the producers at the time of the manufacture of musical instruments such as a video reflector or the addition of new music, barring special circumstances, shall be limited to the scope of reproduction of a copyrighted work and the sale and distribution with musical instruments by the said producers, and such permission does not extend to the use by a singing room business operator who purchased the musical instruments to the general public by reproducing the copyrighted work (see Supreme Court Decision 94Do690 delivered on May 10, 1994).

The judgment of the court below to the same purport is just, and there is no error of law by misapprehending the legal principles as to permission for the exploitation of works, such as the theory of lawsuit.

2. On the second ground for appeal

According to the provisions of subparagraph 3 of Article 2 of the Copyright Act, the term "public performance" means disclosing works to the general public by acting, musical playing, singing, singing, musical playing, screening, or by other means, and includes reproducing sound recordings of performances, broadcasts, and performances to the public and disclosing them to the general public. Here, the term "public" means disclosing works to the general public by spreading or communicating works to many and unspecified persons using electronic devices, etc., even if they are not gathering at the same time without any restriction, in addition to the degree of paying fees, at a public place or at a place where many and unspecified persons gather more than the ordinary family and friendship.

Therefore, even though each of the instant singing rooms operated by the Defendant, like the novels, is merely a small scale where the customers can accommodate more than 4 to 5 persons, as long as the Defendant allowed customers to exploit the copyrighted musical work of this case in the singing room, which is an open place where only the customers can use the copyrighted musical work without restriction, the Defendant’s above so-called constitutes an act of public performance by disclosing the copyrighted musical work to the general public, and there is no error of law by misunderstanding legal principles as to performing the copyrighted musical work, such as the theory of lawsuit. The reasoning of the judgment of the court below is without merit.

3. On the third ground for appeal

As long as the defendant without permission from the copyright holder of the copyrighted musical work of this case or the above association entrusted with the management thereof infringed on another person's property right by performing it without permission, the defendant's so-called violation of the Copyright Act constitutes the crime of violation of the Copyright Act. Whether the above association's validity of the regulation on the use of copyrighted musical work under the approval of the Minister of Culture and Sports does not affect the conclusion of this case. Furthermore, since the above regulation on the use fee of copyrighted musical work which the defendant allowed the singinger to collect the user fee does not have any legal basis or reason to be null and void, the argument about this issue

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)