[2] In a case where: (a) the Korea Music Copyright Association and Company A paid user fees in accordance with the method of calculation stipulated in the Copyright Collection Regulations with respect to the call connection music service provided by Company A, a mobile network operator; and (b) whether additional service user fees are included in the scope of sales, which is the standard for calculating transmission user fees, the case holding that the additional service user fees that Company A received in return for telecommunications services,

1. As to the fourth ground for appeal

Even if the specific and direct judgment on the matters alleged by the parties is not indicated in the judgment, if it is possible to know that the assertion was cited or rejected in light of the overall purport of the reasons for the judgment, it cannot be said to be omitted (see Supreme Court Decision 2011Da104253, Mar. 29, 2012, etc.).

The reasoning of the judgment of the court below does not indicate a specific and direct judgment as to whether the lawsuit in this case is not permitted since it would form a judgment of the court. However, considering the adopted evidence, the court below acknowledged the following facts: (a) since January 2009, the Plaintiff and the Defendant paid the royalty in accordance with the method of calculating copyright usage fee under Article 25 of the Copyright Fee Collection Regulation (amended on February 28, 2008; hereinafter referred to as the "Collection Regulation") as stated in the judgment of the court; (b) on the grounds that there was no agreement as to whether the scope of sales under Article 25 of the Collection Regulation of this case includes additional service usage fee (hereinafter referred to as "the agreement in this case"); and (c) further, on the scope of sales under Article 25 of the Collection Regulation of this case, the court below determined whether the additional service usage fee is included in the scope of sales revenue under Article 25 of the Collection Regulation of this case. Examining the reasoning of the judgment below, it can be found that there was no error in the judgment of omission or omission in the grounds for appeal.

2. As to the grounds of appeal Nos. 1 and 2

A. Interpretation of a juristic act is clearly confirming the objective meaning given by the party to an act of representation. In a case where the objective meaning is not clearly revealed by the party’s language and text, it shall be reasonably interpreted in accordance with logical and empirical rules and the common sense of social norms and transaction norms, by comprehensively taking into account the contents of the language and text, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the party through the juristic act, transaction practices, etc. (see, e.g., Supreme Court Decision 2010Da10291, May 26, 2011).

B. According to the reasoning of the judgment below, the court below, comprehensively based on its adopted evidence, provides that ① the Defendant’s implementation of telephone connection music service (hereinafter “instant service”) from December 2002 in the name of “RING2YU”; ② Article 25 of the Collection Regulation applicable to the agreement of this case provides that “service using telephone” shall be as follows: “in the event of using music through Belgium, telephone such as telephone (on-line telephone, telephone, general telephone, etc.) and portable personal information (PDA), the transmission fee shall be as follows.” Article 23 subparag. 2 provides that “9% of the total amount of sales x music management x 9%” and Article 23 subparag. 2 provides advertising and other revenue from the relevant service site (excluding value-added tax) with the revenue generated from the relevant service site; provided, however, that the amount of sales, advertising and other revenue shall be determined separately by the Defendant’s consultation with the Plaintiff’s service user fee of this case (hereinafter “the Plaintiff’s usage fee of this case”).

C. However, the lower court’s determination is difficult to accept for the following reasons.

(1) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① The royalty under Article 25 of the Collection Clause provides for copyright royalty to be paid when a person who has obtained permission to use a musical work from the Plaintiff directly uses the musical work by means of “transmission” under the Copyright Act. Therefore, even if the Defendant is the other party to the instant agreement, if there is another person using the musical work by means of “transmission” due to reuse permission, etc. from the Defendant, in principle, the user fee should be calculated based on his sales, and the user fee should not be calculated based on the Defendant’s sales. In addition, the term “transmission” under the Copyright Act refers to providing a work, etc. to allow access to the copyrighted work at the time and place of individual choice of the members of the public, including transmission made therefrom (Article 2 subparag. 10 of the Copyright Act). Therefore, whether the person using the copyrighted work by means of “transmission” should be determined mainly by whether the person who provided the copyrighted work to the public access.

② The call connection sound is first processed as a sound source in the length and form that can be used as a telephone connecting sound by a content provider ("CP"). The processed sound source is set up on the website operated by the CP, etc., and sold upon receiving information usage fees from mobile telephone subscribers. The sold sound source was stored in the sound source storage server managed by the Defendant. If the sender calls for a telephone, the recorded sound source was transmitted automatically through the communication network used at the time of voice call. Of these acts, the act of posting the sound source processed by the CP, etc. on the website operated by him/her is merely providing for public use. Accordingly, the act of using the musical work is completed by means of "transmission" under the Copyright Act, and the act of delivering the recorded sound source to the sender after the transmission is merely a mere mere act of delivering and managing information to the Defendant.

③ In order for a mobile network operator to deliver a telephone connection, it is essential to use a sound source storage server, subscriber information management server, and communication network. A mobile network operator, which was a key telecommunications business operator subject to authorization of the terms and conditions of use, applied for the provision of the service along with evidentiary materials, such as direct and indirect expenses, expected number of subscribers, expected revenues, etc., and then imposed additional service charges on the service that delivers a telephone connection from an information and communication department, deeming the service that is rendered by transmitting the call connection from the information and communication department as telecommunications services, and separately, if the content is used, such as the sound source, etc., processed by the CP, the terms and conditions of use was authorized to impose additional service charges on the service of this case as in the mobile network operator. A mobile network operator, even if the Defendant, who was a mobile network operator, reported the terms and conditions of use to separately impose information service charges on the use of the content as in the above company. For that reason, even if the mobile network user did not use the content, such as the sound source separately processed, etc., the user should pay additional service charges to the Defendant.

④ Prior to the conclusion of the instant agreement, the Plaintiff entered into a contract with the CP, etc. to provide the Plaintiff’s management work for the Defendant’s bathing service, and deemed the CP, etc. as the person using the copyrighted musical work by means of “transmission”. The term “sales” under the Copyright User Fee Collection Regulation (amended by July 14, 2006) applied at the time did not differ from the definition of the instant sales, but did not demand that the Plaintiff was not allocated copyright fees for the Defendant’s supplementary service usage fees, and did not demand that the Plaintiff demand that the Plaintiff be paid the royalty.

(2) In full view of the above circumstances, the term “relevant service site” in the definition of the sales amount of this case refers to “CP et al. website” according to its literal meaning, and the term “income from usage fees et al. generated from the relevant service” refers only to the income from information usage fees that the CP et al. received in return for the transmission of sound source to a monetary link, and it is reasonable to interpret “advertisements and other revenues” as “advertisements generated from the CP et al. website.” Therefore, the additional service usage fees that the Defendant received in return for telecommunications service regardless of the act of transmission shall be interpreted as not to be included in “sales”

D. Nevertheless, the lower court, on the grounds indicated in its reasoning, determined that the “sales” under the definition of sales in this case includes the Defendant’s additional service charges that the Defendant received in return for telecommunications services. In so doing, it erred by misapprehending the legal doctrine on the interpretation of a legal act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)