Whether the act of making so-called “stong link” or “direct link” among Internet links constitutes reproduction and transmission as prescribed by the former Copyright Act (negative)

Article 2 Subparag. 14 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) provides that “At the time and place of the public chosen individually, a “transmission” refers to the act of fixing a material object or remaking a material object by means of printing, photographing, copying, sound or visual recording or other means, and “transmission” refers to the act of transmitting or providing a work by means of wireless or wire communication so that users can receive or use it at the time and place of the public’s individual choice. However, “in-depth link or direct link” does not constitute “in-depth link” among Internet links that refer to the technology of facilitating users’ access to web pages, and “the act of directly transmitting or directly providing it to the web page 2” does not constitute “the act of directly transmitting or directly providing the same type of copyrighted works by users to the web server 1 or 4 of the former Copyright Act.”

Article 2 subparag. 9-2 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) (see current Article 2 subparag. 10), Article 14 (see current Article 2 subparag. 22 of the same Act)

Plaintiff (Law Firm Dominsan, Attorneys Park Young-hoon et al., Counsel for the plaintiff-appellant)

Defendant 1 and three others (Attorneys Kim Jae-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na70720 decided September 23, 2008

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

Article 2 Subparag. 14 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006; hereinafter the same) provides that “the act of reproduction” means fixing a tangible object or remaking a tangible object by means of printing, photographing, copying, sound or visual recording, or other means. Article 9-2 of the same Act provides that “transmission” refers to the act of transmitting or providing a copyrighted work by means of wireless or wire communication so that the public may receive or use it at the time and place individually selected. However, among Internet links that refer to technologies that enable users to easily move to the web page in order to access, the act of directly transmitting or directly linking to the web page does not constitute “in-depth link” or “the act of directly transmitting the copyrighted work stored in the web server and directly providing the same type of copyrighted work to users or by attaching it to the web server or providing it to users, and therefore, it does not constitute “the act of directly preparing or using the same type of copyrighted work.”

The court below determined that the Defendants infringed the Plaintiff’s right of reproduction and transmission of the Plaintiff’s musical work by transmitting the Plaintiff’s musical work on the server to Internet users, and rejected the Plaintiff’s assertion as to these parts on the ground that, even if Defendant 2 and Defendant 3’s musical work stored in the website server operated by Defendant 3 were linked by Internet users, or Defendant 2 provided Internet users with Internet address (URL) and Habaxastm, etc. with information so that they could easily link their servers, such circumstance alone does not constitute an infringement of the Plaintiff’s right of reproduction or transmission of the Plaintiff’s musical work, and the evidence submitted by the Plaintiff alone does not necessarily mean that the Defendants had a duty to prevent prior link to all musical works.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the copyright holder's right to reproduce and transmit.

2. Regarding ground of appeal No. 2

In light of the records, it is erroneous for the court below to have determined this point in view of the lack of an explicit assertion that the plaintiff had infringed on the right of reproduction and transmission regarding the "PC performance" service. However, as long as the court below determined that the defendants' liability cannot be recognized for the reasons stated in its reasoning, such determination did not affect the calculation of damages of this case. Thus, there is no error of law such as incomplete deliberation, etc. which affected the conclusion of the judgment as alleged in the grounds of appeal in the judgment of the court below (as a result of the record, there is no circumstance to view that the court below assessed the proportion of rejection of arguments related to the "PC performance" and "mphonephone" service in calculating damages of this case).

3. Conclusion

Therefore, the plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)