Law Firm Chungcheong (Attorney Seo-young, Counsel for the plaintiff-appellant in charge)

Law Firm Nabun (Attorney in charge)

Law Firm Min-young (Attorney Kim Jong-young, Counsel for the defendant-appellant)

2. Of the litigation costs, the costs incurred by the participation of the Plaintiff’s Intervenor shall be borne by the Intervenor, and the remainder shall be borne by the Plaintiff.

It shall pay 15% interest per annum from the day following the service date of a duplicate of the statement to the day of complete payment, respectively.

A. Status of the parties

1) Around 2006, the Plaintiff developed D's ‘D' (hereinafter referred to as ‘D'), which is a large-scale transmission and reception program, and the Defendant developed Ev.2.0, which is a large-scale transmission and reception program, around July 1, 2008, and around June 15, 2009, respectively.

2) The plaintiff and the defendant have supplied D and E respectively to public agencies or local governments that operate the standard records management system (mms1).

B. F and Plaintiff G development

1) Around April 2010 and April 201, the National Archives under the Defendant’s Intervenor’s Intervenor promoted a “F Project” (hereinafter referred to as the “instant Project”) with the content of establishing an electronic records preservation management system of the administrative information system, including the standardization of technical specifications for large electronic records transfer officials.

2) The Plaintiff’s Intervenor was selected as the counter-party to the instant project and the Defendant’s Intervenor on June 18, 2010

With respect to the software and hardware engineering services necessary for the instant project with the Intervenor, the general service contract amounting to KRW 685,00,000 (hereinafter “instant general service contract”). Of the general service contract and the special terms and conditions applicable to the instant general service contract, the parts related to the ownership of author’s property rights are as follows.

Article 56 (Reversion, etc. of Intellectual Property Right to Subject Matter of Contract) (1) of the General Terms and Conditions of the Service Contract shall be jointly owned by an ordering agency (National Recorder) and the other party to the contract (Plaintiff’s Intervenor), and the share shall be equal unless otherwise specified: Provided, That in consideration of the degree of contribution to development and the peculiarity of subject matter of contract, the ownership and the right to use the subject matter of intellectual property rights may be determined differently from the joint ownership through consultation between the parties to the contract. The ownership and the right to use the subject matter of contract under Article 16 (Ownership, etc.) of the Special Conditions of the Service Contract shall be vested in a procuring

3) On July 5, 2010, the Plaintiff’s Intervenor entered into a technical service standard contract (hereinafter “instant subcontract agreement”) with the Plaintiff, which stipulates that the contract amount shall be KRW 139,700,000 as to the expansion of the transfer function of large volume electronic records and the promotion of the standardization of technical specifications of the instant project.

4) In establishing online transmission software of electronic archives, the National Archives established and published the technical specifications (v.1.0) for online transmission of electronic archives (hereinafter “standard technical specifications”) on 12,30.12, 2010 in order to efficiently transmit online electronic archives.

5) On December 2010, the Plaintiff developed “G” programs installed in the Central Archives Records Management System of the National Archives in accordance with the standard technical specifications, and provided all development output products, including program source codes, to the National Archives.

C. Defendant E.5 Development

1) The National Archives refers to the Defendant that he/she will screen existing E in accordance with the standard technical specifications. The Defendant, around January 10, 201, referred to the compliance with the standard technical specifications from the Plaintiff, received the unit chain of G from the Plaintiff while being referring to the compliance with the standard technical specifications. On February 11, 2011, he/she received G’s total source code from the National Archives.

2) Around May 2011, the Defendant developed Ev.2.5 and offered it to the National Archives.

D. Acquisition of certification for the Plaintiff DV.2.1

On the other hand, around December 14, 2012, the Plaintiff obtained quality certification that the performance of transmission of electronic records is confirmed in compliance with the functional specifications required by HV.2.1 as to DV.2.1 developed by himself/herself, by complying with the technical specifications required by the H Association.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1-4, 11, Eul evidence Nos. 1-7, 11-18, and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

Around 2010, 12, and 31, the Plaintiff had already completed the development of Dv.2.1, and then supplied DV.2.1 to G with only the program name changed to G, and Dv.2.1 and G are the same programs. However, the Defendant infringed the Plaintiff’s copyright by reproducing Dv.2.1 (G), the Plaintiff’s copyrighted work, without the Plaintiff’s consent or permission, and developing Ev.2.5. The Plaintiff caused the Defendant’s unlawful reproduction by the Defendant’s unlawful reproduction, thereby causing damage to the amount equivalent to KRW 2,696,734,125 (including E-post and E-V.20 delivery also planned to be free of charge, Ev.2.5) supplied by the Defendant to a public agency or local government as indicated in the attached Form (including attached Form 1(2),643,934,125 won + KRW 52,80,00).

Therefore, the defendant is obligated to compensate the plaintiff for the above damages in accordance with Article 125 of the Copyright Act or Article 750 of the Civil Act.

B. Defendant

1) Since G’s copyright holder is not the Plaintiff, it is unreasonable for the Plaintiff to claim rights, such as the claim for damages based on the copyright. The Plaintiff’s Dv.2.1 is not the same program as G, but the program that was developed later than the Defendant’s Ev.2.5, and Ev.2.5 cannot be related to Dv.2.1.

2) E.2.5 and D.2.1 are programs that have been developed in compliance with the standard technical specifications published by the National Archives, and thus, the structure of a source code, such as a package name, clean name, and brine name, is bound to be standardized in compliance with the Standards. Furthermore, if the words constituting a package name, clean name, etc. do not have creativity and copyright is not recognized, and only the unique source code’s similarity is not recognized in comparison with the Ev.2.5 and Dv.2.1, there is no substantial similarity between Ev.2.1 and Dv.2.1.

3) The Defendant provided EV.2.5 to the National Archives for the program compatibility test, and did not sell 142 public agencies or local governments, as alleged by the Plaintiff.

3. Determination

(a) Ownership of G’s property rights;

The plaintiff's claim is based on the premise that the defendant infringed on the plaintiff's copyright (author's property right) by reproducing GD v.2.1, which is the plaintiff's work, and therefore, I first examine whether G's property right belongs to anyone.

In light of the following circumstances acknowledged by the aforementioned evidence, evidence No. 22, evidence No. 22, program appraisal results of the Korea Copyright Appraisal Commission, and the purport of the entire pleadings, it is reasonable to view that the author’s property right in the G program was reverted to the Intervenor.

① Article 16 of the Special Conditions of the service contract applicable to the instant general service contract clearly provides that the ownership and the right to use the main service shall have an end-user institution (National Archives).

In the proposal submitted by the Plaintiff’s Intervenor at the time of the tender for the project in this case, the proposer will revert the copyright to the supervising agency for all products related to the proposal system for software, database, etc. generated in the course of development. The proposer states that the proposal shall not be disclosed to the outside without permission for all products protected by copyright after the process of development and the completion of development. The proposal also has the same effect as the contract (46 pages of the proposal).

According to the contents of the instant general service agreement, it is clear that the author’s property right on all products, such as software (program), supplied by the Plaintiff’s Intervenor pursuant to the instant project belongs to the Intervenor joining the Defendant.

② Furthermore, G is not a product that the Plaintiff had already completed development and supplied or sold during the market, but falls under the output that the Plaintiff participated in and developed in the instant project as the subcontractor of the Plaintiff’s Intervenor and the Plaintiff’s Intervenor to perform part of the instant general service agreement.

In order to assume the responsibility for part of the instant subcontract between the Plaintiff and the Plaintiff’s Intervenor, the instant subcontract provides that the Plaintiff shall perform the duties under the control of the Plaintiff’s Intervenor (Article 3), and the ownership of and the right to use the instant general service contract, which is specified as being an end-user (the National Archives) shall have the ownership of and the right to use the instant services. The latter is accompanied by the special terms and conditions of the instant general service contract. After completing the development of G pursuant to Article 4 of the instant subcontract agreement, the Plaintiff, which provided that the output according to the performance of the contract shall be supplied

In addition, under the title of "ownership and risk burden" in Article 7 of the subcontract of this case, "B" is stipulated that "B [Plaintiff] bears the risk of loss or damage to its delivery / [G] until it arrives at the place of installation of "National Archives", and it is premised on the transfer of ownership and risk burden while delivering it to the National Archives, which is the place of order.

Considering the content of such a contract, the background and content, the Intervenor joining the Defendant, the Plaintiff’s Intervenor, and the Plaintiff’s contractual status and method of delivery, etc., the Plaintiff should be deemed to have supplied all developed products, including the source code, with the intent of reverting the author’s property right to G to the National Archives.

G is also a combination of ‘I' and ‘J' that the program is a program developed and supplied customized to the National Archives for the project in this case.

④ There is sufficient room to view the Defendant’s receipt of the original GS file from the National Archives as having granted the license to use for reference to comply with the standard technical specifications.

⑤ The mere fact that the part related to G development among the contract amount of the instant subcontract is less than KRW 17,00,000 solely on the basis of the fact that the said part related to G development is considered as the consideration for the transfer of author’s property right, is insufficient to deem that the Plaintiff, a development business entity, has reserved the author’s property right to the Plaintiff (the Plaintiff’s Intervenor) (in addition, the base amount for the estimate presented by the Plaintiff in the Plaintiff’s Intervenor was KRW 45,00,000, but the Plaintiff finally set the discount rate of KRW 17,00,

6) The Plaintiff asserts that DV.2.1 and G, one’s own work, are the same program. However, the passing of a certification test to verify compliance with Dv.2.1’s standard technical specifications, which was conducted on December 14, 2012, when two years have passed since G was supplied to the National Archives. Moreover, the indicated “G (DV.2.1)” as the Plaintiff’s report on the program appraisal is merely the same, and it was not compared with G and Dv.2.1 by distinguishing the source code. In light of these circumstances, it is difficult to deem that whether G’s property rights belong to the Defendant as the Plaintiff’s assertion, and it is difficult to view that it was sufficiently proven that G and Dv.2.1 are the same program guidance (it does not affect the Defendant’s assertion that G’s property rights belong to the Defendant, as seen earlier).

B. Whether the legal principle on the author's decision of an occupational work is applied

On the other hand, the Plaintiff asserts to the effect that, on November 10, 2000, the Supreme Court Decision 98Da60590 Decided the author's decision of the program created in the course of business, etc., the Plaintiff asserts to the effect that, inasmuch as the National Archives exclusively plans G and invests funds, and only the Plaintiff (development business operator) lends the Plaintiff's human resources and entrusts the development, the Plaintiff’s copyright belongs to the Plaintiff who developed G by investing its technology, costs and human resources.

However, the above legal principle is merely determining who is the author who is the original acquisitor of the program copyright, and does not determine who is the final acquisitor of the program copyright that can be disposed and transferred. In other words, in this case, there is room to deem that the Plaintiff, a developer, at the same time as G, acquired the copyright of the program as the author at the time of the development of G. However, as seen earlier, it is reasonable to view that the Plaintiff transferred the author’s property right excluding the author’s moral rights that are not subject to transfer or disposition among the copyright by submitting all products, such as G’s license and the content of the subcontract, to the National Archives, as seen earlier. The Plaintiff’

4. Conclusion

The plaintiff's claim based on the premise that the plaintiff is the author's property right holder of G is dismissed as it is without any reason to examine the remainder.

Judges Go Young-han

Judges Kim Gin-han

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.