[2] The meaning of "use of a work" under the main sentence of Article 12 (2) of the former Copyright Act

[3] In a case where a notice that infringes on other persons' copyright was posted at the Internet posting space provided by an online service provider who operates the Internet portal site, the elements for establishing joint tort liability as an assistant by omission against the act of a person who directly posted the above notice to the online service provider

[4] The meaning of "amount equivalent to the amount which can be ordinarily received by exercising the right" under Article 93 (2) of the former Copyright Act and the method of calculating the amount

1. As to the grounds of appeal against Defendant YEN Korea Limited Liability Company

A. Whether tort liability arising from the direct infringement of the right of reproduction, transmission right, or public transmission right is liable

Article 2 Subparag. 14 of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006; hereinafter the same) provides that “the term” means fixing a tangible object or remaking a tangible object by means of printing, photographing, copying, sound or visual recording, or other means. Article 9-2 of the same Act provides that “transmission” refers to the transmission of a work by means of wireless or wire communication or providing a work for reception or use at the time and place of individual choice by the public. However, so-called Internet link is merely an expression of the web page to be linked on the Internet, web site, etc. or a web site, etc.’s web page or individual copyrighted work stored therein, which constitutes “the transmission of a link” as provided for in Article 2 subparag. 14 of the former Copyright Act and Article 2 subparag. 2 of the same Act, even if Internet users directly connect the link to the web page or individual copyrighted work, such act does not constitute “the transmission of a copyrighted object” as provided for in Article 7 subparag. 14 of the former Copyright Act or the same legal doctrine. 9.

Examining the facts duly admitted by the court below in light of the aforementioned legal principles and the records, it cannot be said that the Plaintiff’s right of reproduction, right of transmission, or right of public transmission is infringed solely on the ground that the Defendant Open Broadcasting Co., Ltd. (hereinafter “Defendant Co., Ltd”) who opened and operated the Defendant Open Port (hereinafter “Defendant Co., Ltd”) as an online service provider, which was the Internet portal site, provided the electronic bulletin board service and image search service, and the Defendant misunderstanding that the Defendant Co., Ltd. (hereinafter “Defendant Co., Ltd.”) who joined the above service as a member of the above service, provided the Plaintiff’s photo that was the reproduction of the Plaintiff’s photo that floddoned on his “blod” on the instant image, which is a reproduction of the Plaintiff’s photo, by linking it with the address where the original image is stored.

Therefore, the judgment of the court below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the right of reproduction, transmission, or public transmission under the former Copyright Act or the amended Copyright Act, as otherwise alleged in the grounds of appeal. The purport of the remaining grounds of appeal in this part of the grounds of appeal is that the court below erred in the selection of evidence or fact-finding belonging to the exclusive right of the court below, which is a fact-finding court, and the court below did not err in the

B. Whether tort liability by a direct infringement of the right to indicate name is liable

Article 12(1) of the former Copyright Act provides that "the author shall have the right to indicate his/her real name or pseudonym in making his/her original or reproduction of a work public," and the main text of Article 12(2) provides that "the person who uses a work shall indicate his/her real name or pseudonym on the basis of his/her real name or pseudonym in the absence of such author's special declaration of intention." In light of the legislative purport of the above provision or the relevant legal provisions, it is reasonable to deem that "use of a work" under the main text of Article 12(2) of the former Copyright Act means the use of a work in the same manner as reproduction, transmission, etc. protected by the author's right, and such legal principle also applies to "use of a work" under the main sentence of Article 12(2) of the amended Copyright Act.

In light of the above legal principles and records, in order to recognize that the defendant company infringed the plaintiff's right to indicate the image of this case, which is the reproduction of the plaintiff's photograph, the fact that the image of this case was used in the same way as reproduction, transmission, etc., which constitutes the author's rights or contents under the former Copyright Act or the amended Copyright Act, should be acknowledged. However, it cannot be viewed that the defendant company used the image of this case in the same way.

Although the court below made different reasons, it is just to conclude that the defendant company did not infringe the plaintiff's right to indicate the image of this case, and therefore, it does not err in the misapprehension of legal principles as to the right to indicate the name, which affected the judgment, contrary to what is alleged in the grounds of appeal.

C. Whether to bear the responsibility for aiding and abetting

Even if an online service provider, who operates the Internet portal site, posted a notice that infringes on another person’s copyright at the Internet space provided by the online service provider, and can easily find the above online users through the search function, such circumstance alone does not immediately lead to tort liability against the above service provider for infringement of copyright. However, in light of the purpose of posting the copyright infringement notice, contents, period and method of posting, degree of damage caused thereby, relationship between the bulletin provider and the victim, degree of response between both parties related to the posting, degree of development of related Internet technology, economic cost following the introduction of technical means, etc., it is evident that the illegality of the copyright infringement notice posted at the Internet space provided by the above service provider is evident, and even if the above service provider did not directly request the victim to delete and block other persons’ copyright infringement, such notice may be easily posted or recognized, or the existence of such notice may be recognized, and if such notice is not directly made available to the service provider, it shall be deemed that the above online service provider’s act constitutes a tort (see, e.g., Supreme Court Decision 2000Da2820.

In light of the above legal principles, according to the circumstances cited by the court below, such as the contents of the image of this case, which is a reproduction of the plaintiff's photograph, the use status of the ordinary Internet users' electronic message board services, and the development level of Internet technology, etc., the culture of free sharing and exchange between the members is rapidly spreading by opening a space for posting the individual or club on the Internet portal site, posting a photograph taken by each individual or club, etc., and posting it on the Internet portal site, which led to the rapid spread of culture of free sharing and exchange between the members. In addition, the defendant company did not have any indication as to the image of this case without any indication as to the copyright of this case. It appears that there was no technical means to automatically display such a copyright infringement notice, and the defendant company did not have any specific knowledge of the circumstances where the image of this case was posted on the "blog," as its member, or it could not be seen that the defendant company did not have any duty to prevent the plaintiff from posting the image of this case.

Therefore, the judgment of the court below which held that the defendant company cannot be held liable as a joint tortfeasor by aiding and abetting the defendant company is just and acceptable, and there is no error in the misapprehension of legal principles as to aiding and abetting liability as alleged in the grounds of appeal.

D. Whether the employer is liable

In order to establish an employer's liability for tort, the use relationship between the employer and the tortfeasor must have a relation to the actual direction and supervision of the tortfeasor (see Supreme Court Decision 98Da62671, Oct. 12, 199). Examining the reasoning of the judgment below in light of the above legal principles and records, the court below is just in holding that the defendant company cannot be deemed to have a relation to the actual direction and supervision of the defendant's mistake finding that the defendant company was merely an Internet user who joined as a member. The defendant company did not bear the liability for damages as an employer against the copyright infringement of the defendant's misleading finding that the defendant company did not bear the responsibility for damages. In so doing

2. As to the ground of appeal as to Defendant misunderstanding

In calculating the amount of damages pursuant to Article 93(2) of the former Copyright Act, the term “amount equivalent to the amount which can be ordinarily entitled to exercise the right” refers to the objectively reasonable amount that the infringing person would have paid as the consideration if the infringing person had obtained permission to exploit works in a form similar to the act of infringement. In case where the copyright holder entered into a contract to exploit works in a manner similar to the act of infringement and received user fees, barring any special circumstance, the amount of damages may be calculated on the basis of the amount that the copyright holder would normally be entitled to receive by exercising the right. If the copyright holder entered into such a contract to use works in a manner similar to the act of infringement or has not received the fees, the amount of damages may be calculated on the basis of the amount of damages calculated on the basis of the generalization of the same industry. However, if it is difficult to calculate the amount of damages pursuant to Article 93(2) of the former Copyright Act based on the usage fees generalized in the same industry, the court may recognize a reasonable amount of damages by taking into account the intent of pleadings and the examination of evidence (see, e.

In light of the above legal principles and records, it is difficult for the court below to calculate the amount of damages suffered by the plaintiff on the basis of the amount equivalent to the amount ordinarily entitled to exercise the right against the image of this case which was reproduced and transmitted without permission by the defendant misunderstanding as stated in its holding, and it is just to calculate the amount of damages caused by the plaintiff's infringement of the above defendant's property right after considering the indirect facts revealed by the result of investigation of evidence and the purport of the whole pleading.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)