Whether Article 5 of the former Computer Programs Protection Act applies to a contract for the production of a program (negative in principle)

Article 2 Subparag. 2 and Article 5 of the former Computer Programs Protection Act (repealed by Act No. 9625, Apr. 22, 2009)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Law Firm oriented, Attorneys Nam Jong-chul et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Korean Peninsula, Attorneys Sin-hwan et al., Counsel for defendant)

Seoul High Court Decision 2010Na89533 decided June 22, 2011

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. We examine the Defendant’s grounds of appeal.

Article 5 of the former Computer Program Protection Act (repealed by Act No. 9625, Apr. 22, 2009; hereinafter the same) provides that “A program created by a person engaged in a business of a corporation, etc. under the planning of the State, a corporation, an organization, or any other user (hereinafter “corporation, etc.”) shall be the author of the relevant program, unless otherwise stipulated in a contract, work regulations, etc.” This provision provides for exceptions under Article 2 subparag. 2 of the former Computer Program Protection Act, in which the creator of the program is the author of the relevant program. Therefore, Article 5 of the former Computer Program Protection Act provides that “A program shall be planned exclusively for the program and a development business operator shall be entrusted with the development of only the human resources of the development business operator while investing in the fund, and the entrusted development business operator shall not apply to a contract for the production of the program, except in exceptional cases such as the development and supply for only the client (see Supreme Court Decision 98Da60590, Nov. 10, 2000).

Examining the record in light of the above legal principles, although the Plaintiff developed the instant program as indicated in the judgment of the court below at the request of co-defendant 2 of the court below, the Plaintiff used the title of the development director of the Earsen, while performing the development work of the instant system at the Earsen Office operated by Co-Defendant 2 of the court below, and the co-Defendant 2 of the court below agreed to bear the costs of developing the instant system. However, such circumstance alone does not constitute exceptional circumstances such as where Co-Defendant 2 of the court below entirely planned the creation of the instant program and entrusted the Plaintiff with the Plaintiff with the development of only the Plaintiff’s human resources while investing funds. Accordingly, the author of the instant program developed under a contract for the production of the instant program, which falls under a contract between the Plaintiff and Co-Defendant 2 of the court below, is not the co-defendant 2 of the court below, the order, but the Plaintiff created

Furthermore, solely based on the foregoing circumstances, the Plaintiff cannot be deemed to have delegated the right to dispose of the copyright of the instant program to co-defendant 2 of the lower court.

The judgment below to the same purport is just, and contrary to the defendant's grounds of appeal, there were no errors in the misapprehension of the legal principle regarding the attribution of program copyright, or in finding facts against logical and empirical rules or contrary to the reasoning.

2. We examine the Plaintiff’s grounds of appeal.

The lower court determined that it is reasonable to calculate the amount of damages that the Defendant is liable for damages due to the infringement of the copyright of the instant program pursuant to Article 32(5) of the former Computer Programs Protection Act, on the following grounds: (a) even though the Nonparty was aware that the Nonparty purchased 380 electric power supply devices from Dream Electronic Co., Ltd. from May 2, 2007 to November 23, 2009, the Defendant could not be deemed to have received 38,00 electric power supply devices from the Nonparty; and (b) the Plaintiff did not have any other data to calculate the amount of damages incurred by the Plaintiff; (c) the amount of damages that the Defendant is liable for damages due to the infringement of the copyright of the instant program due to the infringement of the copyright of the instant program; (d) the period and the distribution method of the instant program; (e) the unit price and sales price of the electric power supply equipment installed by the instant program; (e) the sales tax invoice sales amount of the Nonparty from 2007 to 2009 to the Plaintiff’s difficulty in preparing the instant program.

In light of the records, the above judgment of the court below is just and acceptable, and there is no violation of law as alleged in the plaintiff's ground of appeal.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)