[2] The method of interpretation where it is not clear whether an agreement between a producer of a phonogram and a producer of a phonogram is a neighboring right transfer agreement or a license agreement for use of a phonogram

[3] The case holding that since the scope of authorization to use neighboring rights to a phonogram is limited to the production, distribution, and sale of the phonogram in question, the act of manufacturing compilations or providing mobile and Internet music provision services using the sound source recorded in the phonogram in question constitutes infringement of neighboring rights

[2] It is not clear whether an agreement between virtual and musical record planning company related to the production of a music record is a neighboring right transfer agreement or a license agreement, and it is reasonable to presume that a party’s intent is reserved to the neighboring right if such agreement is not externally expressed.

[3] The case holding that since the scope of the permission to use the above neighboring rights is limited to the production, distribution, and sale of the relevant phonogram, since the scope of the permission to use the neighboring rights is limited to the production, distribution, and sale of the relevant phonogram, in light of all the circumstances such as the fact that, in case where the number of copies having neighboring rights as the phonogram producer permits the use of neighboring rights so that the phonogram can be produced, sold, and distributed by the phonogram planning company, if the party predicted the activation of the service to provide the edited phonogram or mobile and Internet music content at the time of the sale of the above phonogram, it is viewed that the act of manufacturing the Compilation destroyed by using the sound

2. The defendant shall not produce a phonogram by using the grains recorded in the separate sheet No. 8, (9), and (1) of [Attachment No. 1], or allow a third party to produce a edited phonogram on his/her own or by using the grains recorded in each phonogram listed in the separate sheet No. 1, or reproduce and distribute mobile services, Internet services, etc. by reproducing it in the form of a computer compression file.

3. The plaintiffs' remaining claims are dismissed.

4. The costs of lawsuit are five-minutes and three are assessed against the plaintiffs, and the remainder is assessed against the defendant.

5. Paragraph 1 can be provisionally executed.

[Based on the recognition] The evidence Nos. 1-1-2, 2, 3, 12-1, 12-1-31, 13, 14-1-2, 1-2, 15-1-49, 1-5, 17-1-4, 18-1, 19, 20-20-1, 2, and 1-20-1, 2-2, and 1-1 of the evidence Nos. 1-2, and 1-31 of the evidence Nos. 1-2, 13, and 14-2, and 1-5 of the evidence Nos. 15, A16-2, 17

A. The plaintiffs are the number of persons working in the name of group (group name omitted) since around 1988. The defendant established a "(name omitted) planning" as a music record planning company around 1982. Since November 23, 1988, "stock company (name omitted) planning" from March 23, 1998, "stock company East Asian Museum" from March 23, 1998, and "Dongon Entertainment" from around 2003.

B. From Jun. 1, 198 to Jan. 2002, through a company (title omitted) planning operated by the Defendant, etc., the Plaintiffs reflected in the attached list 1, 2, 3, 4, 5, 6, 7, 8, 9, and 11, each sound record (hereinafter “each sound record of this case”).

C. The plaintiffs have received a certain amount of money from the defendant (as indicated in the attached Table 1 list, KRW 10 million, KRW 20 million, KRW 100 million, KRW 150 million, and KRW 100 million, and KRW 150 million, and KRW 100 million: Provided, That the defendant has agreed to pay the plaintiffs a discount corresponding to the sales volume if a certain number of phonograms are sold, and KRW 100,000, KRW 200,000, and KRW 100,000, KRW 200,000.

(d) The column 1 list was sold (as at the time of sale of heading 50,00, the sale quantity of CD and MC was 31,250, MC 18,750, and the net profit of the sale was 5,400, and MC was 2,700,00,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,00,00,00,00,00,000,

E. The Defendant provided mobile services (e.g., labelling level, slabing, music letter, etc.) and Internet services (singing service) in trust with the Korea Musician Association. From the quarter of March 2003 to the quarter of April 2005, the profits earned from the instant sound records are KRW 8,63,986.

F. The Defendant, using the grains in each of the instant records, made himself/herself the same Compilation No. 1 as the attached list No. 1 , or allowed another Phonogram to produce edited records by using them. In return, the Defendant received KRW 2,00,000 and KRW 2,000,000 from Nitos, respectively.

2. Determination as to a claim for human tax payment

A. According to the facts acknowledged earlier, the Defendant is obligated to pay the Plaintiffs the royalty of KRW 4820,00 and delay damages for the portion sold in excess of 50,000,000 for the portion sold in excess of 50,000 copies pursuant to the agreement in attached Table 2 list 4.

【Calculation Basis】

CDA: 5,400 won 】 7,750 (=39,000 - 31,250) x 0.8 (Personnel ratio) x 33,480,000 won

MC: 2,700 won 】 5,250 (=24,000 - 18,750) x 0.8 (Personnel ratio) x 11,340,000 won

B. The defendant defense that the defendant set off the defendant's claim against the plaintiffs with the defendant's claim of 40 million won (20 million won added to the community video production cost at spring around spring around November 5, 2001, 15 million won loans around November 5, 2001, and 5 million won loans around November 2002) against the defendant's automatic claim amount. However, it is insufficient to acknowledge that the defendant's statement in Eul evidence 2 alone has the above claim against the plaintiffs, and there is no other evidence, and the defendant's defense is without merit.

3. Determination as to the infringement of neighboring rights

A. The parties' assertion

(1) The plaintiffs' assertion

(A) As a producer of each of the instant records, the Plaintiffs are holding neighboring rights. The Defendant was only authorized to reproduce, manufacture, and distribute the records by using the original part produced by the Plaintiffs. Of the instant records, the Defendant’s Schedule 1 8, 9, and 10 were already extinguished in accordance with the agreement indicated in attached Table 2.

(B) Notwithstanding the fact that only the authority to distribute and sell each of the instant records was authorized by the Plaintiff, the Defendants were obligated to compensate the Plaintiffs for the damages suffered by the Plaintiffs, since they reproduced part of the instant records, sold or distributed them to other records companies, thereby allowing them to produce the edited records, and distributed them to the mobile service companies or Internet service companies, thereby infringing the Plaintiffs’ neighboring rights.

(C) In addition, the defendant violated the plaintiffs' neighboring rights as above, and even though the lawsuit of this case is in progress, the defendant sold the plaintiffs' Already without permission, and there is a possibility that such infringement will be repeated and continued, so the defendant is obligated not to do the same act as stated in the purport of the claim against the plaintiffs.

(2) The defendant's assertion

(A) The Plaintiffs concluded an exclusive agreement with the Defendant and produced each of the instant records at the Defendant’s expense, and thus, the neighboring rights holder of each of the instant records is the Defendant. Even if the Plaintiffs are recognized as neighboring rights, the Defendant issued a down payment to the Plaintiffs and concluded an exclusive agreement, thereby taking over the neighboring rights.

(B) Home affairs, as alleged by the plaintiffs, even if the defendant's status is merely a person permitted to use neighboring rights, the scope of the permission to use such rights includes the production of a crime and the provision of mobile and Internet services.

B. Confirmation of neighboring rights holders:

(1) In full view of the facts and the evidence admitted earlier, the Plaintiffs are recognized as having produced the original half of each of the records of this case through the compilation process to harmonize the strongness or sound of the Gara and the musical instruments with the sound of the Gara and the musical instruments. The Plaintiffs, in producing each of the records of this case, directly perform the following duties: (a) the production of the records of each of the records of this case by writing, writing, and singing most of the music; and (b) the production of the records of this case by directly performing the duties of selecting the grains to be recorded in the records; (c) the management of the music records of this case; (d) the production of the music tape by directly performing the duties of selecting the music; and (e) the management of the music records of this case; and (e) the production of the music tape by dividing the musical musical instruments and their own windows.

The Plaintiffs and the Defendant have consistently maintained a similar arrangement with respect to each of the instant records. Each agreement entered in the separate list in the separate sheet 2, which remains as a disposal document, is not clear whether the agreement between the Plaintiffs and the Defendant is a neighboring right transfer contract or a license agreement, and if the intent of the parties is not externally expressed, it is reasonable to presume that the rights to the neighboring rights are reserved.

In light of the above, it is reasonable to view that the phonogram producer is the person who first fixed the sound stipulated in Article 2 subparag. 7 of the Copyright Act as the plaintiffs (In addition, it is insufficient to recognize that the defendant was the producer of each of the of the of the of the of the of the of the of the of this case or the acquisition of neighboring rights from the plaintiffs, and there is no other evidence to acknowledge the defendant's assertion).

(2) Therefore, the Defendant constitutes a person permitted to use neighboring rights so that each of the instant records can be manufactured, sold and distributed by the Plaintiffs. The period of use is as acknowledged by the Plaintiffs with respect to each of the instant records, 8, 9, 100 of the instant records, excluding the sound records, as shown by the Plaintiffs. 8, 9, 100 of the instant records, the period of use is extended pursuant to the agreement in attached Table 2 List 3, and 9, as to the sound records, the period has been extended pursuant to the agreement in attached Table 2 List 4, and 1, as to the sound records, until the end of December 31, 2006.

C. Scope of the license to exploit neighboring rights

Meanwhile, the scope of the license agreement entered into between the plaintiffs and the defendant is unclear with regard to the scope of the license agreement entered into between the plaintiffs on the basis of the agreement entered in the separate list No. 2, but the scope of the license agreement entered into between the plaintiffs and the defendant. However, the period of neighboring rights permitted by the plaintiffs is relatively long-term, and the plaintiffs did not receive profits from the defendant in addition to the down payment in the name of the down payment received at the time of the sale of each music record. If the plaintiffs predicted the activation of the service of providing compilation records or mobile and Internet sound sources at the time of the sale of each music record of this case, the plaintiffs would have agreed on other terms. The acts of manufacturing and providing to mobile and Internet services without limitation using the sound source contained in each of the music records of this case can be seen as unfairly infringing on the plaintiffs' copyright, which has most copyrights contained in each of the music records of this case.

(d) Markets:

(1) If so, the defendant is obligated to pay the amount and delay damages to the plaintiff, since the defendant suffered damages equivalent to KRW 12,663,986, which is the profit that the defendant acquired by infringement of neighboring rights, such as the records in paragraph (e), (f) and paragraph (f) (the revenue of KRW 863,986,00,000,000,000,000,0000,000,0000,000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,000,000,0000,000,000

(2) In addition, according to the facts acknowledged above, since the above infringement of neighboring rights by the defendant is likely to be repeated and continued, the plaintiffs can seek the prohibition and prevention against the defendant, and considering the period and scope of the use of neighboring rights by the defendant recognized earlier, it is reasonable to prohibit the acts specified in Paragraph (2) of the Disposition against the defendant.

4. Conclusion

Therefore, the plaintiffs' claims of this case are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

[Separate] List of Phonograms and List of Contracts: Omitted

Judges Kim Young-young (Presiding Judge)