[1] Whether an act constitutes an act of infringement of author's property right in a case where a person purchases reproduced musical instruments without a copyright holder's permission to use and engages in business against the general public by reproducing home and musical instruments reproduced in singing (affirmative)

[2] Whether the validity of permission to use a musical work to a person manufacturing a singing machine is also applicable to a singing business operator who purchases and operates the machine (negative)

[3] The meaning of "public performance" under Article 2 subparagraph 3 of the former Copyright Act, which is a concept of "public performance", and whether allowing customers to use a sound or visual musical work in a singing room constitutes "public performance" under the Copyright Act (affirmative)

[1] Article 42(1) and (2) of the former Copyright Act (amended by Act No. 6134 of Jan. 12, 200) provides that the holder of author’s property right may allow another person to exploit his/her work, and the person who has obtained such permission may exploit the work within the scope of the method and conditions so permitted. In violation of such provision, it is deemed that the act of operating a business against the general public by purchasing reproduced musical instruments without the permission of the copyright holder and reproducing home and musical music reproduced at singing.

[2] The Korea Music Copyright Association, a copyright management service provider of musical works, permits the use of musical works by receiving fees from its producers at the time of the manufacture of musical instruments such as a video reflector or the additional entry of new music products, barring special circumstances, is limited to the scope of reproduction of a copyrighted work by the said producers to include the copyrighted work in a singing machine and the sale and distribution of the copyrighted work together with the singing machine. The effect of such permission does not extend to the use of the copyrighted work by the singing room business operator who purchased the singing machine by means of reproducing the copyrighted work against the general public.

[3] Article 2 subparagraph 3 of the former Copyright Act provides that "public performance" refers to the disclosure of copyrighted works to the general public by acting, musical playing, singing, singing, singing, singing, singing, screening, or by other means, including the reproduction of sound or visual recording to the general public." Here, the term "public" refers to the disclosure of copyrighted works to the general public at a public place where many and unspecified persons gather more than the scope of ordinary family and friendship, without any restriction, or the disclosure of copyrighted works to the general public through the propagation and communication of copyrighted works by using electronic devices, etc. even if they are not gathered at the same time. Thus, even if each separate room of singing is a small scale to accommodate the small number of customers, if the general public uses copyrighted works by means of sound or visual recording in singing machines, which are open to the public without restriction only at customer fees, it does not fall under the scope of public performance or video works under the Copyright Act, which does not fall under the category of public performance or video works under the same Act, and thus, it does not fall under the scope of public performance or video works under the Copyright Act.

[1] Articles 42(1) and (2), and 98 subparag. 1 (see current Article 97-5) of the former Copyright Act (Amended by Act No. 6134, Jan. 12, 2000); / [2] Article 42 of the former Copyright Act (Amended by Act No. 6134, Jan. 12, 2000) / [3] Article 2 subparag. 3, Article 98 subparag. 1 (see current Article 97-5); Article 2 subparag. 1 of the Public Performance Act; Article 2 subparag. 5 (d) of the Sound Records, Video Products, and Game Products Act

[1] Supreme Court Decision 94Do690 delivered on May 10, 1994 (Gong1994Sang, 1749)/ [2] Supreme Court Decision 95Do1288 delivered on March 22, 1996 (Gong1996Sang, 1457)/ [3] Supreme Court Decision 95Do1288 delivered on March 22, 1996 (Gong196Sang, 1457)

Defendant

Defendant

Incheon District Court Decision 2001No784 delivered on July 12, 2001

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the exploitation permit of copyrighted works

Article 42(1) and (2) of the former Copyright Act (amended by Act No. 6134, Jan. 12, 2000) provides that the holder of author’s property right may allow another person to exploit his/her work, and the person who has obtained such permission may exploit the work within the scope of the method and conditions so permitted. In violation of such provision, an act of buying reproduced musical instruments without the permission of the copyright holder to use and play a business against the general public in a manner of reproducing domestic and musical music reproduced in singing rooms (see, e.g., Supreme Court Decision 94Do690, May 10, 194).

Examining the reasoning of the judgment of the court of first instance and the records as cited by the court below in light of the aforementioned legal principles and the records, the court below is justified in finding the defendant guilty of the violation of the former Copyright Act, which committed a violation of the copyright law, and maintained the first instance court's punishment, which convicted the customers of the violation of the copyright law, by using singing machines, etc. from February 12, 200 to June 1 of the same year, and there is no error in the misapprehension of legal principles as to the permission to use copyrighted musical works, as alleged in the grounds for appeal, even though the procedures for the contract on the permission to use copyrighted musical works are not stipulated in related Acts and subordinate statutes, it is not impossible for the defendant and the same musical business operator to enter into an agreement on the permission to use copyrighted musical works with the copyright holder, and therefore there is no error in the misapprehension of legal principles as to the permission to use copyrighted musical works. The argument that the musical business is not subject to the permission to use copyrighted musical works is merely an independent opinion and therefore cannot be accepted.

2. As to the ground of appeal on the scope of the permit to exploit copyrighted works

The Korea Music Copyright Association, which is a copyright management service provider for musical works, permits the use of musical works by receiving fees from manufacturers at the time of the manufacture of musical instruments such as a video reflector or the addition of new musical instruments, barring special circumstances, shall be limited to the scope of reproduction of a work and the sale and distribution with musical instruments by the said producers, barring special circumstances. The effect of such authorization does not extend to the use by a singing retailer who purchased singing instruments against the general public by means of reproducing the recorded works (see Supreme Court Decision 95Do1288, Mar. 22, 1996).

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below to the same purport is just, and there is no error of law such as misunderstanding of legal principles as to the scope of copyright use license, as otherwise alleged in the grounds of appeal. The allegation in the grounds of appeal that the Plaintiff cannot pay the royalty because there was no notification as to the use of musical works at the time of purchase of a musical device

3. As to the ground of appeal on performance, etc. under the Copyright Act

Article 2 subparag. 3 of the former Copyright Act provides that "public performance" refers to the disclosure of copyrighted works to the general public by acting, musical playing, singing, singing, singing, singing, screening, or by any other means, including the reproduction of sound or visual recordings of performances, broadcasting, and performances to the general public." Here, the term "public" refers to the disclosure of copyrighted works to the general public at a public place where many and unspecified persons gather, without any restriction, in addition to the degree of payment by fees, or at a public place where many and unspecified persons gather more than the ordinary family and friendship, or the disclosure of copyrighted works by using electronic devices, etc., even if they are not gathering at the same time. Thus, even if each room of singing is merely a small scale in which many unspecified persons are able to accommodate customers, if the general customer has used copyrighted works by means of sound or visual recording in singing machines, which are open to the public without restriction, it shall be deemed to have been disclosed to the general public (see, e.g., Supreme Court Decision 98Do2982, Feb. 25, 1996).

Upon examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below to the same purport is just, and there is no violation of law such as misunderstanding of legal principles as to performance of copyrighted works, as alleged in the grounds of appeal. Even if the meaning of performance under the Public Performance Act differs from that of the Copyright Act, or there is a separate provision regulating singing practice business in the Sound Records, Video Products and Game Software Act, the above laws and the Copyright Act differ in their legislative purpose, provisions, and applicable scope, so the defendant's singing practice does not constitute a public performance under the Copyright Act. In addition, even if the musical work is reproduced through singing, without permission of the copyright holder's use, and is made open to the general public in a similar type of business other than singing, it is merely a matter that the defendant's act of violation of the former Copyright Act is justified or the defendant's act of this case is guilty, and there is no error in the misapprehension of legal principles as to this part of the grounds of appeal, as otherwise alleged in the grounds of appeal.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)