[1] Criteria to determine whether there exists a substantial similarity between two program works in order to judge whether a program copyright infringement under the former Computer Programs Protection Act exists

[2] In a case where a program copyright is held in title, the person who has the right to file a complaint under Article 48 of the former Computer Program Protection Act for a third party’s infringement (=title trustee)

[1] The term “computer program work” under the former Computer Program Protection Act (repealed by Article 2 of the Addenda of the Copyright Act, Act No. 9625, Apr. 22, 2009) refers to a creative production expressed in a series of instructions and orders used directly or indirectly within an apparatus with data processing capabilities, such as a computer, in order to obtain a specific result. Thus, when determining whether there exists a substantial similarity between two program works in order to determine whether to infringe a program copyright, it shall be compared only with those constituting a creative expression form.

[2] Article 48 of the former Computer Program Protection Act (repealed by Article 2 of the Addenda to the Copyright Act, Act No. 9625, Apr. 22, 2009; hereinafter the same) provides that a public action may be instituted only when a complaint is filed by a program copyright owner or an exclusive program publication right owner, etc. In a case where a program copyright is held under title trust, only the title trustee is the program copyright owner in the external relationship, and only the third party’s complaint as prescribed in Article 48 of the former Computer Program Protection Act can be

[1] Article 2 subparagraph 1 (see current Article 2 subparagraph 16 of the Copyright Act), Article 29 (1) (see current Article 136 (1) 1 of the Copyright Act), Article 46 (1) 1 (see current Article 136 (1) 1 of the Copyright Act) of the former Computer Programs Protection Act (repealed by Article 2 of the Addenda to the Copyright Act, Act No. 9625, Apr. 22, 2009), Article 29 (1) (see current Article 136 (1) 1 of the Copyright Act), Article 46 (1) 1 (see current Article 136 (1) 1 of the Copyright Act), Article 48 (see current Article 140 of the Copyright Act) of the former Computer Programs Protection Act (Amended by Act No. 9625, Apr. 22, 2009);

[1] Supreme Court Decision 99Da10813 decided Oct. 24, 2000 (Gong2000Ha, 2381) Supreme Court Decision 2009Do291 decided Feb. 10, 201 (Gong201Sang, 594)

Defendant 1 and one other

Defendants

Law Firm Earma, Attorneys Don-ho

Seoul Central District Court Decision 2010No116 decided June 16, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

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

1. As to the ground of appeal on whether the program copyright infringement has been infringed

A. Method of determining whether computer program works are substantially similar;

The term “computer program work” under the former Computer Program Protection Act (Act No. 9625, Apr. 22, 2009; hereinafter the same shall apply) refers to a creative production expressed in a series of instructions and orders used directly or indirectly within a device with data processing capabilities, such as a computer, in order to obtain a specific result. Thus, when determining whether there exists a substantial similarity between two program works in order to determine whether there exists a program copyright infringement, it shall be prepared only in the form of creative expression (see Supreme Court Decision 9Da10813, Oct. 24, 200, etc.).

B. As to the LIP files

According to evidence, etc. duly adopted and examined by the court below, (1) in the case of a program of “EL mixed file” as stated in the judgment of the court below and an CAD file, among the components of the “live file” program as indicated in the judgment of the court below, is prepared in the programming language of Orthical (LP) and is automatically prepared parts of the columns, doors, windows, etc. in the architectural design drawings prepared by Orthiopid (LCAD), and (2) in the case of a file expansion’s file, the file of which is a DCL file (hereinafter referred to as “DCL file”) shall be separated from each other without any specific type of the CA file, and thus, it shall be determined that each type of the CA file is reproduced or copied, and even if the file is prepared in an automated language of each of the CAD files, each of which shall be connected with the CAD file to the extent that the user can automatically prepare the drawings.

However, according to the evidence duly adopted and examined by the court below, it is recognized that there is a high level of similarity between some of the dry-dried files that constitute the constituent elements of the “ELD” program and the corresponding “ECAD program” files, and barring any special circumstance, the Defendants infringed the program copyright of “ELD” by reproducing and distributing such dry-dried files.

Although the court below's reasoning is insufficient, it is legitimate to determine that the defendants infringed the program copyright of the "ELN" program in the above purport. Thus, the defendants' ground of appeal on this point is without merit.

Meanwhile, according to the evidence duly adopted and examined by the court below, the court below did not err by misapprehending the legal principles as alleged in the grounds of appeal in adopting the appraisal result of the Computer Program Protection Committee, which only 2000 BerCAD program as the object of appraisal, as evidence, because all of the names are the same and some of the files sold in 2007 are different, but there is little difference in substance.

C. As to the core file for architectural design and its hybrid

According to the evidence duly adopted and examined by the court below, non-indicted 1, who prepared a core file for the construction design of the "ELP" program and its sobler, stated in the prosecutor's investigation as well as in the first instance court that "the file name, size, color, etc. of the existing similar program have been modified only by using the core file of the LPPP program and LPPP program", and in fact, considerable parts of the core file of the LPP program are the same and similar to the core file of the other program that had been sold in the city from that time, and the core file is also provided by the manufacturer of the relevant material. In light of the aforementioned legal principles, it is difficult to view that the defendants' creative and similar parts of the original program and the similar parts of the program franchise are identical or similar to the core file of the similar program that had been distributed in the city from that time, in order to determine the similarity between the original and similar parts of the program franchise and the similar parts."

Nevertheless, the lower court affirmed the first instance judgment convicting all of the facts charged on the premise that all of the core files of the ELN program and the Rabler are creative. In so doing, the lower court erred by misapprehending the legal doctrine on the creativity and substantial similarity of program works, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

D. As to the cellphone file

The infringement of the program copyright is established by the reproduction, alteration, translation, distribution, publication, and transmission of the pertinent program. However, according to the evidence duly admitted and examined by the court below, etc., inasmuch as it is acknowledged that the defendants copied and distributed three cell files, such as ADD. SHX, CADKHX, CADSHHX, and CASG.SHHX (hereinafter “the cell files of this case”), the defendants would infringe the program copyright of each cell files of this case even though the defendants did not use the cell files of this case in the CAD program, even though they did not have the function of using the cell files of this case in the CAD program. Accordingly, the grounds for appeal on this issue are without merit.

2. As to the ground of appeal on the lawfulness of the instant indictment

(a) A complainant under the former Computer Program Protection Act;

Article 48 of the former Computer Program Protection Act provides that a public action may be instituted only when a complaint is filed by a program copyright owner or an exclusive program publication right owner, etc. In the event that a program copyright is held in title, only a title trustee is a program copyright owner in an external relationship, and only a title trustee may file a complaint under Article 48 of the former Computer Program Protection Act for a third party’

(b) The program copyright owner of LBP and each of the instant mobile files;

The instant case is prosecuted upon Nonindicted 2’s complaint that Nonindicted 3 Company asserted as the program copyright owner of ELP. However, according to the records, ① Nonindicted 3 Company’s program copyright that completed the program registration on June 18, 1994 is transferred to Nonindicted 2, the complainant on June 30, 199 and completed Nonindicted 2’s transfer registration on August 18, 199. ② Meanwhile, Nonindicted 4 Company (hereinafter “Nonindicted 4 Company”) whose name was registered as a director from May 199 to 15, 199, changed the name of Nonindicted 3 Company from May 15, 199 to Nonindicted 4 Company’s program copyright transfer registration to Nonindicted 1, 200, Nonindicted 4 Company’s program copyright transfer registration to Nonindicted 5 Company’s program copyright transfer registration to Nonindicted 4, the program copyright transfer registration to Nonindicted 5 Company’s program copyright transfer registration to Nonindicted 4, 205, and the program copyright transfer registration to Nonindicted 4, 500.

In full view of these circumstances and evidence duly adopted and examined by the court below, the “ELC franchise program” program, which is specified as the program subject to infringement, appears to be substantially identical to the “ELP program” that was registered in around 2000, and the program copyright owner of the “ELP program” at the time of the program copyright infringement period indicated in the facts charged, was Nonindicted 5, and the program copyright owner of each of the instant sponsor files is Nonindicted 4. Thus, the court below should have deliberated on what title Nonindicted 2 filed the instant complaint based on what title it was, and examined whether the instant indictment based on Nonindicted 2’s complaint was legitimate.

Nevertheless, the lower court, without failing to exhaust all the above deliberation, concluded that the prosecution of this case is legitimate on the premise that Nonindicted 2 is the program copyright owner of ELD franchise and each of the instant cell files, and determined the legitimacy of the facts charged. In so doing, the lower court erred by failing to exhaust all necessary deliberations as to the legitimacy of the indictment of this case. The allegation contained in the grounds of appeal on this point is

Meanwhile, a damp file is an element of a program work, and this case concerns the relationship between the use of Lmixed Program before the repeal of the former Computer Program Protection Act. Thus, the former Computer Program Protection Act applies pursuant to Article 5 (2) of the Addenda to the Copyright Act amended by Act No. 9625 of Apr. 22, 2009. Article 5 of the former Computer Program Protection Act (wholly amended by Act No. 8101 of Dec. 28, 2006; hereinafter the same) provides that a program prepared on duty, unlike Article 9 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006; hereinafter the same), all users, such as a corporation, regardless of whether it is a work written, shall be the author of the work written on duty. Thus, the argument in the grounds of appeal that the copyright of a damp file belongs to Nonindicted 1 on the basis of Article 9

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendants, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)