[저작권법위반][미간행]
[1] The standard for determining whether a case is cited in compliance with a fair practice within the reasonable scope under Article 25 of the Copyright Act
[2] The case affirming the judgment of the court below which held that the work was used in conformity with fair practices within the reasonable scope under the Copyright Act in the event that the author's photograph is used as an image for image screening at the Internet search site without the original permission
[1] Articles 25 and 97-5 of the Copyright Act / [2] Articles 25 and 97-5 of the Copyright Act
[1] Supreme Court Decision 97Do2227 delivered on November 25, 1997 (Gong1998Sang, 178) Supreme Court Decision 97Da34839 delivered on July 10, 1998, Supreme Court Decision 2004Do1075 Delivered on May 13, 2004
Defendant 1 and one other
Prosecutor
Law Firm Geosung, Attorney Lee Han-dae, Counsel for defendant-appellant
Seoul Central District Court Decision 2004No1342 Decided September 23, 2005
All appeals are dismissed.
Article 25 of the Copyright Act provides that a work already made public may be quoted for news report, criticism, education, research, etc., within a reasonable scope consistent with a fair practice. Whether a work conforms to a fair practice shall be determined within a reasonable scope by comprehensively taking into account the purpose of the quotation, nature of the work, the contents and quantity quoted, the method and form that contains a scriptive work, the general concept of reader, and whether the demand for the original work is replaced (see, e.g., Supreme Court Decisions 97Da34839, Jul. 10, 1998; 2004Do1075, May 13, 2004).
After compiling the selected evidence, the lower court acknowledged the facts as indicated in its reasoning, and determined that the Nonindicted Company’s photographic works posted in the form of image on the search site of the Nonindicted Company 2 (hereinafter “Defendant Company”) had already been made public on the Nonindicted Party’s personal website; the Defendant Company’s major purpose of providing its image is to list the images related to the search language in the narrow form to provide search services, and to provide the users of the search services with location information on the image; the Defendants’ commercial character is nothing more than that of displaying or selling the Nonindicted Party’s photograph as art work; it can be deemed that the Nonindicted Party Company’s photograph material has an aesthetic and artistic purpose; on the other hand, it is difficult to view the Nonindicted Party Company’s photographic work as its original image more likely to have been used on the Defendant Company’s own website than that of its original image; on the other hand, the size of Nonindicted Party’s photographic work that is imageed on the Defendant Company’s own website is more than that of its original image; and on the other hand, it is difficult to see it as its independent photograph.
In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as misconception of facts due to violation of the rules of evidence or misunderstanding of legal principles as to the legitimate use under Article 25 of the Copyright Act.
In addition, as long as the above determination by the court below is correct, even if the defendants' act does not constitute a legitimate use, the judgment of the court below that it is difficult to deem the defendants to have committed an intentional act on the violation of the Copyright Act is merely an additional or a family judgment attached to the above judgment, and it cannot affect the conclusion of the judgment. Thus, the argument in the grounds of appeal as to this cannot be accepted
Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Ji-hyung (Presiding Justice)