2015Da892 (Joint) Confirmation of the existence of an obligation in respect of copyright

2015Da908 (Joint) Confirmation of the existence of an obligation in respect of copyright

2015Da915 (Counterclaim) Compensation for damages

1907 (Consolidation), 2014Na19914 (Consolidation), 2014Na1921 (Counterclaim) Judgment

The costs of appeal are assessed against Defendant (Counterclaim Plaintiff).

Meanwhile, Article 46(2) of the Copyright Act provides that a person who obtains permission for the exploitation of a work from an author’s property right holder may exploit the work within the scope of such permitted method and conditions. The permission for the exploitation of the work refers to the permission for the use of an individual right that constitutes an author’s property right, such as the right to reproduce the work.

Therefore, the use of a computer program installed in auxiliary memory, such as HDD (HD) by a person who obtained permission for reproduction from an author holding economic rights by installing a computer program constitutes the use of copyrighted works within the scope of the method and conditions permitted by the person who obtained permission for use of copyrighted works. Even if the user who obtained permission for reproduction violated the method and conditions of use of the program as stipulated in the agreement with the author holding economic rights, it cannot be deemed that the said user infringed the right of reproduction of the author holding economic rights, aside from the fact that the user was liable for nonperformance due to the breach of the contract.

(2) According to the reasoning of the lower judgment and the evidence duly adopted and examined by the lower court, the following facts are revealed.

① Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) is the author’s property right of Open Capture, which is a computer program that provides a computer user with a photographer function. Open Capture on February 5, 2012.

B. From 6.7 to 7.0 T. B. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. T. H. T. T. T. T. T. T. H. H. T. H. H. H. T. H. H. H. T, H. H. T. T. T. H. T. H. H. H. H. H.

② If the Open Capture 6.7 Open Capture is installed and operated, it starts with a new server. Confirmation takes place, and regardless of the leakage of the confirmer, the Paid Network of Open Capture automatically downloads the user’s computer HD’s HD license to a temporary route, and then, the computer program is installed in BHD license (HD).

③ Following the use license agreement (hereinafter referred to as the “Terms and Conditions of this case”) is created to ask whether the licensee consents to the license agreement, including the license agreement. In the case of the Paid License of Open Capture, the content will be used only for the terms and conditions of the license agreement and for the individual use for non-business purposes. The latter purpose is to purchase the license for a company, and the latter purpose is to use the license free of charge if it is used for non-business purposes, and if it is used for non-business purposes, the license should be purchased. In order to use the license for non-business purposes, if the user finally files a confirmer on the license agreement of this case, the paid license of Open Capture of Open Capture can be used for the computer.

④ The employees of Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) used the Paid License of Open Capture for business purposes, which was allowed to use with the consent to the terms and conditions of the instant agreement. Examining the aforementioned facts in accordance with the legal principles as seen earlier, as seen earlier, the Paid License of Open Capture was voluntarily fixed to the Defendant’s HD drive license (HD) through the process of operating the program provided by the Defendant, and the reproduction was completed upon the Defendant’s consent. As long as such reproduction can be deemed to have been made with the Defendant’s permission, the Plaintiffs’ employees cannot be deemed to have infringed the Defendant’s right of reproduction regarding the Paid License of Open Capture, even if the Defendant’s employees are not liable for nonperformance with respect to the use of the program in violation of the methods and conditions set forth in the instant agreement.

Although the reasoning of the lower judgment somewhat inappropriate, the conclusion that rejected this part of the Defendant’s assertion is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the infringement of the right of reproduction and Article 46(2) of the Copyright

2. Determination as to the ground of appeal No. 2 (1) In the process of implementing a computer program installed in auxiliary memory devices, such as HD (HD) or searching, inspecting, and transmitting digital works via the Internet, the central processing unit (CPU) of a computer provides that the reproduction of a computer program, which occurs in the process, shall be deemed temporary reproduction in that the contents of the reproduced computer program are erased when all is cut off. Meanwhile, while the Copyright Act includes "temporary fixing or remaking a copyrighted work on a tangible object" in the concept of reproduction under Article 2 subparag. 22, the case where the user uses copyrighted works on a computer, etc., to the extent that it is deemed necessary for smooth and efficient information processing, it can be temporarily reproduced on the computer to the extent that it is deemed necessary to protect the copyright holder's right to use copyrighted works, etc. in light of the legislative intent of the Copyright Act and the purpose of the Copyright Act to ensure the smooth and efficient use of copyrighted works is to protect the copyright holder's rights.

(3) Examining the record in accordance with the aforementioned legal doctrine, when the employees of the Plaintiffs run the Paid Open Capture of Open Capture from a computer, a part of the computer program is temporarily stored in a certain space of RoM (RAM), which is a key storage device for the user’s computer, and thus, temporary reproduction is carried out. This is a part of the operating process of the computer program, and it is difficult to deem that there is an independent economic value when inevitably accompanying the use of the computer program, which is a copyrighted work.

As seen earlier, so long as the paid server of Open Capture was reproduced on the computers HDBB of the Plaintiffs’ employees, there is no ground falling under the proviso of Article 35-2 of the Copyright Act as to “where the use of a copyrighted work is an exception to the exemption from the infringement of temporary reproduction rights” under the proviso of Article 35-2 of the Copyright Act. Even if the terms and conditions of the instant contract are the content allowing temporary reproduction only for non-business purposes, it cannot be deemed that the temporary reproduction generated in the process of implementing the reproduced Open Capture of Open Capture constitutes a copyright infringement, apart from the fact that the said temporary reproduction occurred in the course of the implementation of the paid server of Open Capture of Open Capture is the nonperformance of obligations due to the breach of contract.

Therefore, temporary reproduction generated by the Defendant’s implementation of the paid server of Open Capture may be deemed within the scope deemed necessary for smooth and efficient information processing when using copyrighted works from a computer under Article 35-2 of the Copyright Act. Therefore, the Plaintiffs’ employees cannot be said to have infringed the Defendant’s temporary reproduction right to the paid server of Open Capture.

(4) If so, the lower court is justifiable to have determined that temporary reproduction, which takes place following the implementation of the Open Capture of Open Capture, did not infringe on the Defendant’s copyright. In so doing, the lower court did not err by misapprehending the legal doctrine on the infringement of the right of reproduction and Article 35-2

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 Go Young-young

Justices Jo Hee-de

Justices Kim Jong-il