Expenses for appeal shall be borne by the defendant.

The reasoning for the court's explanation on this case is as stated in the reasoning of the judgment of the court of first instance except for the addition of the following additional judgments, and thus, this is cited by the main text of Article 420 of the Civil Procedure Act.

2. Additional determination

A. Determination as to the assertion of abuse of copyright

(1) The defendant asserts as follows.

The Plaintiff is in a market dominant position as prescribed by the Monopoly Regulation and Fair Trade Act. However, in order to increase the revenue of more than one, the Plaintiff made the Defendant enter into an agreement in Article 1-6(f)(2) of the judgment of the first instance court (hereinafter “instant agreement”) with respect to the additional service charges imposed by the Defendant in return for the use of telecommunications networks and technical investment, and filed the instant lawsuit based on such agreement. This is the Plaintiff’s abuse of copyright in the anti-competitive direction by taking advantage of its market dominant position.

(2) Therefore, according to the foregoing facts and facts, the following circumstances are revealed.

First of all, pursuant to Article 105(5) of the Copyright Act, the Plaintiff is not in a position to unilaterally determine copyright usage fees, since it obtains approval from the Minister of Culture, Sports and Tourism for the rate and amount of usage fees.

Next, the process of the instant lawsuit is examined. The Plaintiff’s copyright royalty collection regulation was amended on February 28, 2008, and there was a dispute between the Plaintiff and the Defendant as to the transmission fee that the Plaintiff would receive from the Defendant. In other words, the issue was whether the sales amount, which is an element of determining transmission fee, includes the Defendant’s additional service fee that the Defendant would receive in 900 won per month from the insured. In order to resolve the dispute, the instant agreement was reached between the Plaintiff and the Defendant as to whether the Plaintiff included the additional service fee in the sales amount around March 2009, and the Plaintiff filed the instant lawsuit based on the agreement.

Meanwhile, as alleged by the Defendant, it appears that there exists a policyholder among the supplementary service users that does not use the Plaintiff’s sound (as of July 9, 2010, the Defendant asserted that, rather than the Plaintiff’s sound or copyrighted music, not about 23% of the Plaintiff’s sound, but the Plaintiff did not provide general standards, and that the Plaintiff is not accurate). However, the Defendant received information usage fees of KRW 700 through KRW 1,400 from the policyholder who wants to receive the Plaintiff’s sound sources, and received the information usage fees of KRW 9% from the Plaintiff, 4.5% of the performance, and 25.5% of the music producers’ neighboring rights, etc., and distributed the total amount of 39% (9% + 4.5% + 25.5% of the Plaintiff’s neighboring rights, etc.) to the Plaintiff’s neighboring rights, and thus, it appears that there is no concern for the Defendant to take account of 17.5% of the Plaintiff’s additional service usage charges and 16.3% of the Plaintiff’s distribution of information usage charges.

(3) In light of the above circumstances, the circumstances and purport of the Plaintiff’s establishment, and the Defendant’s business size and position in the mobile communications industry, etc., the instant agreement or the instant lawsuit based thereon derived from the Plaintiff’s market dominant position cannot be deemed as an abuse of copyright.

B. Judgment on the assertion on damages for delay

The defendant asserts that even if the defendant is liable to pay the user fee to the plaintiff among the supplementary service charges, the defendant's obligation under the agreement of this case occurred due to the final conclusion of the judgment of this case, and thus, the defendant did not bear any delay liability

Therefore, according to the records of evidence Nos. 1 and 3-1 through 12, the agreement of this case is determined by the court's final judgment as to whether the Plaintiff and the Defendant included the additional service fee in the sales amount. However, if the Defendant's payment obligation arises through the judgment, the effective period shall begin from January 2009. It can be acknowledged that the amount the Defendant paid to the Plaintiff out of the user fee paid by the insured is paid to the Plaintiff through the relevant substitute service company within 3 months after the settlement of the copyright payment service company. According to the above facts, according to the above facts, the Defendant's obligation to pay the Plaintiff on the transmission fee of March 2009 for which the Plaintiff seeks payment through the lawsuit of this case becomes final and conclusive, and at least within 3 months from the day after the date following the decision of this case, the Defendant is obliged to pay the damages for delay as the Plaintiff seeks the payment obligation of this case after the three-month period.

3. Conclusion

Therefore, the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Ki-taik (Presiding Judge)