[1] Whether the books of books concerning the disease of young children, who have written in accordance with the method of expression, by arranging the results of counseling with them for several years, have originality as a work protected under the Copyright Act (affirmative)

[2] The case holding that a reproduction is merely a mere alteration of a part of the material to the extent that the material is recognizable or identical, such as the selection of material, method of expression, order of description, form of explanation, classification of fall, and the composition of problem

[3] The meaning of the right of publication under Article 54 (1) of the Copyright Act and whether the infringement of the right of publication is recognized even if the right of publication is not published as it is (affirmative)

[4] The case holding that seeking the prohibition of advertisement against the books itself which were reproduced without permission constitutes an excessive claim

[1] Even though the specific content of each corresponding part of "A" related to a child's disease is not itself a creative level, but is based on the fact that it is common or publicly known medical books, if the author arranged the result of counseling with Agymar through PC communications for several years and written in accordance with the expression method, it has the character as a work made by the author's mental effort, and it is not different since some existing theories, etc. are included, it cannot be deemed that "A" has the originality as a work protected under the Copyright Act, and it is merely an idea.

[2] The case holding that each of the above parts of "B" is substantially similar to the corresponding parts of "A" and its expressions are substantially similar, on the grounds that although the book "B" differs from each of the corresponding parts of "A" and the door is added, it merely changes extremely to the extent that the whole is citing or recognizing the selection of materials, method of expression, order, description form, division of appearance, problem, composition of problem, etc.

[3] According to Article 54(1) of the Copyright Act, a person who has the right to reproduce and distribute a work may have the right to publish the work in writing or drawing by printing or any other similar means. The right to publish a work is a right to exclusively reproduce and distribute the work in writing, drawing, or by any other similar means, and the right to publish a work is a right to have a quasi-exclusive reproduction that can not be granted to a third party even if the copyright holder is a copyright holder, so once the right of publication is established, the reproduction and distribution right is transferred to the holder of the right of publication. Meanwhile, according to Article 54(2) of the Copyright Act, "the person who has the right of publication shall have the right to publish the work which is the object of the right of publication" as provided by the act of establishment. This means not only the original right holder but also the right to publish the work in the original form, if the publication right holder is to publish the work in writing or drawing.

[4] The case holding that as long as it is recognized as a separate work even with the exception of the reproduced book, seeking the prohibition of advertisement of the book itself, not the specific advertisement of each reproduced book, constitutes an excessive claim

[1] Article 2 subparagraph 1 of the Copyright Act / [2] Articles 16 and 92 of the Copyright Act / [3] Article 54 of the Copyright Act / [4] Article 91 of the Copyright Act

[1] Supreme Court Decision 97Do227 delivered on November 25, 1997 (Gong1998Sang, 178) Supreme Court Decision 98Da46259 delivered on November 26, 199 (Gong200Sang, 28) / [2] Supreme Court Decision 89Meu12824 delivered on October 24, 1989 (Gong1989, 1766)

C (Law Firm Sejong, Attorneys Park Sung-ho et al., Counsel for the defendant-appellant)

Non-Paks Co., Ltd. and one other (Attorney Lee Dong-ju, Counsel for the plaintiff-appellant)

1. The defendants shall not publish, print, reproduce, present, sell and distribute each corresponding part of the books listed in the Schedule 1 in the Schedule 2, unless they delete the corresponding parts in the Schedule 2.

2. The defendants shall destroy all finished products, half-finished products, printing films, publishing materials, etc. of the book in the Schedule 1, including each corresponding part listed in the Schedule 2.

3. The plaintiff's remaining claims against the defendants are all dismissed.

4. Of the litigation costs, 20% is borne by the Plaintiff, and 80% is borne by the Defendants, respectively.

5. The above paragraphs 1 and 2 can be provisionally executed.

The Defendants shall not publish, print, reproduce, reproduce, present, sell, distribute, advertise the books in the separate sheet No. 1, and do any other act as to this book. The Defendants shall discard the finished products, semi-finished products, printing films, etc. of the books in the separate sheet No. 1.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account all the descriptions of Gap evidence 1 through 162 and all the arguments, and each description of Eul evidence 1-2, Eul evidence 3 through 158, and each description of Eul evidence 1-1, 2, Eul evidence 3 through 158 does not interfere with the above recognition, and there is no counter-proof.

A. Status and contractual relationship of the parties

(1)D는 서울대학교 의과대학을 졸업하고 서울대학병원에서 인턴과 레지던트과정을 거친 소아과 전문의로서 아기의 건강과 육아에 관한 칼럼을 연재하고, PC통신 하니텔과 유니텔에 "E"를 개설하여 일반인들과 육아상담을 하면서 받았던 많은 질문내용과 병원에서 진료를 하면서 받았던 질문내용들을 기초로 하여 "삐뽀삐뽀 A"(이하 'A'라 한다)를 집필하였다.

On April 30, 1996, the Plaintiff, as the representative of the F publication of books, concluded a contract for publication right with the above D and produced and sold the above books on January 25, 1997. On May 6, 1999, the Plaintiff concluded a contract for publication right with the above D on May 6, 199.

(2) The Defendant Non-Indicted Co., Ltd. is a publishing company that creates an information document, such as juice, for a month for pregnant women and jutema. While the author plans a form of document that provides information pro-friendly to pathma, the author plans to do so with appropriate patha and Q&A in the last month of the mast, the Defendant Non-Indicted Co., Ltd. was the Defendant G with his intention to answer from patha to April 1994. The Defendant G written the author’s book in attached Table 1 (hereinafter “B”) and written the publication right contract, and produced and sold the above B from April 200.

(b) Composition and contents of each book;

"A" shall be arranged in order to explain the disease and first aid measures therefor, etc., from Chapter I to Chapter 58, and shall include vaccination, 2. Q&A; child care common sense; 3. physical development average value; and 2.B shall be arranged in the order of disease that is deemed important depending on the child's growth and development process; however, an explanation was given by using the same or similar materials as that of the Plaintiff's location; after explaining the disease and first aid measures therefor, it was made in Q&A; after preparing a separate list of the parts of the disease and the same or similar materials as that of the Plaintiff's location and making it possible for each page to enter the list of the parts of the disease and the same or similar materials as that of the Plaintiff's body; and after preparing a separate list of questions about the parts of the disease, "B" shall be made in the same or similar form as the Plaintiff's body of the disease and maintaining the identity of the body of the Plaintiff.

2. The parties' assertion

A. The plaintiff's assertion

"A" is a work that is recognized as creative in writing by arranging the result of counseling with Agregnites through computer communications for several years. The Plaintiff acquired the right of publication by establishing a contract for the right of publication with D as it is. Since the Defendants infringed the Plaintiff’s right of publication by producing and selling “B” through a complete or several modification of the contents of the contract, the Defendants seek for the prohibition of infringement based on the right of publication as a claim for prohibition of infringement, such as the publication, printing, reproduction, reproduction, reproduction, sale, sale, distribution, prohibition of advertisement, and disposal of finished products, semi-finished products, and printing films.

B. The defendants' assertion

(1)A’s contents have been commercialized from the date of the publication of the above books through a short or childcare magazine, health information of daily newspapers, etc., and as such, the method of expression is generalized as childcare information. Thus, it cannot be said that the above book was reproduced or reconstructed on the basis of it, or that it constitutes a creative expression subject to protection under the Copyright Act because it is merely an idea, and it does not correspond to that of the creative expression subject to protection under the Copyright Act. Furthermore, the “A” and “B” are not identical or similar to that of the contents, and thus, the Plaintiff’s claim for infringement of publication right is unjust.

(2) According to Article 54(2) of the Copyright Act, a person for whom the right of publication has been established has the right to publish the object of the right of publication "A" as prescribed by the act of establishment. Thus, even if the Defendants were to reproduce or reconstruct the part of the above "A" without permission, the Defendants' "B" did not reproduce the Plaintiff's "A" as it is. Thus, the Defendants' act does not infringe the Plaintiff's right of publication, even if it is separate from the infringement of the Plaintiff's "A"'s copyright, and therefore, the Plaintiff has no right to seek suspension of infringement on the ground that the Plaintiff infringed the right of publication on the establishment of "A".

3. Determination

(a) Whether the term “A” is a work;

A work protected under the Copyright Act shall be “a creative production belonging to the scope of literary, scientific or artistic works” (Article 2 subparag. 1 of the Copyright Act), and “a creative production” means a creative expression form in which literary, academic, or artistic works are externally and specifically expressed by words, letters, sound, color, etc., and the contents of such expression are not, in principle, protected under the Copyright Act. In particular, in the case of a work falling under the scope of science, it is not necessary to enhance the level of the author’s identity that the remaining as his/her own work is not a pipe of beer. However, the copyright protection should be compared to the creative expression form in order to determine whether a copyrighted work infringes upon copyright (see, e.g., Supreme Court Decision 96Da29969, Apr. 19, 199).

Although the specific contents of each corresponding part of the "A" are not creative in itself as argued by the defendants, but common or public notice or based on the facts of the existing medical book, this part of the plaintiff's assertion is characterized as a work made by creative mental efforts of the above D, so long as the plaintiff written "A" in accordance with the method of expression, by arranging the result of counseling with Agregnites through PC communications, etc. for several years, the plaintiff entered into the contract for publication of the right of publication, it is deemed that it is a work made by creative mental efforts of the above D, and it is not different since some existing theories, etc. are included, since the plaintiff's "A" is creative as a work protected under the Copyright Act, and it cannot be deemed that it is merely an idea. Thus, we cannot accept this part of the defendants' assertion.

B. Determination of comparison of two books

If another person's work is reproduced without permission, it would be an infringement of the right of reproduction. In this case, even if the work is not reproduced in its original form and is somewhat modified, increased or decreased, or modified, it should be viewed as a reproduction if it is recognized or sense of identity or identity of the original. Even in cases where part of the original work is reconstructed, if it is re-defined as an essential part of the original work, it also constitutes reproduction.

According to the above evidence and the facts of recognition, each of the parts listed in the Schedule B, “B,” which was produced and sold by the Defendants, is different from each of the corresponding parts of “A,” which was produced and sold by the Plaintiff, and the door is added. However, as a whole, some of the parts of “B,” such as the selection of materials, method of expression, order of statement, description form, classification of fall, and composition of problem, are merely partly changed to the extent that it is recognized as identical or identical. Thus, each of the above parts of “B,” and its expressions are substantially similar to those of “A,” and thus, constitutes reproduction

However, the plaintiff asserts that the part other than the part in the attached Table 2 among the "B" is similar to the corresponding part of the plaintiff's "A", but each of the above parts is a part that defendant G himself/herself prepared based on the acquired information while working as a minor medical specialist for about 10 years, or cannot be expressed differently in the nature of "B" that takes the form of explanation from the point of view of a physician who is an expert, or cannot be viewed as a reproduction because it is not recognized as the identity of the expression because it is limited to the part of which is extremely insignificant, or because it is considerable to the quantity and quality of the part in the whole of the "B" book. Therefore, this part of the plaintiff's assertion is rejected.

(c) Whether the establishment and publication right of the plaintiff is infringed (the meaning of "original works" in Article 54, paragraph 2, of the Copyright Act);

According to Article 54 (1) of the Copyright Act, a person who has the right to reproduce and distribute a work may have the right to publish the work in writing or drawing on the basis of printing or other similar methods. The right of publication is a right to exclusively reproduce and distribute the work in writing, drawing, or other similar methods, and the right of publication is a right to exclusively reproduce and distribute the work to a third party, even if the copyright holder has subsequent to the establishment of the right of publication. Accordingly, when the right of publication is established, the right of reproduction and distribution of the copyright holder shall be transferred to the holder of the right of publication. Meanwhile, according to Article 54 (2) of the Copyright Act, "the person who has the right of publication has the right of publication "the right of original publication of the work which is the object of the right of publication" as prescribed by the act of establishment. This does not mean that if the holder of the right of publication is to publish the work in writing or drawing, it does not mean that the right of publication does not infringe the right of publication as it does not mean the original owner's duty of publication.

Even if the Defendants reproduced only part of the Plaintiff’s “A” and published “B” as they did not publish “A” as they were, as seen earlier, insofar as the Defendants reproduced “A”, it shall be deemed to have infringed the Plaintiff’s publication right, and therefore, the Defendants’ assertion on this part shall also be without merit.

D. As to the Plaintiff’s claim for prohibition of advertisement

Although the Plaintiff sought prohibition of advertisement against the above "B", as seen earlier, as long as "B" is recognized as a separate work, it constitutes an excessive claim to seek prohibition of advertisement against "B" itself, not a specific advertisement for each content listed in attached Table 2. Therefore, this part of the claim is rejected.

4. Conclusion

If so, the Defendants shall not publish, print, reproduce, present, sell, and distribute each corresponding part of the books listed in the separate sheet No. 2 in the separate sheet No. 1. Since they are obligated to destroy finished products, semi-finished products, printing films, and other publishing materials in the separate sheet No. 1 containing each corresponding part of the corresponding part in the separate sheet No. 2 list, the Plaintiff’s claim shall be accepted within the extent of the above recognition.

Judges Shin Sung-sung(Presiding Judge) et al.