The legislative intent of Article 29(4)2 of the former Computer Programs Protection Act / Whether a person who produces a computer program that infringes on a computer program copyright through reproduction, reproduction, or adaptation may be punished for a violation of the said provision (negative)

Article 29(4)2 of the former Computer Program Protection Act (amended by Act No. 9625, Apr. 22, 2009; hereinafter “former Program Protection Act”) provides that the use of a program is not included in the form of infringement on the original program copyright, but is not included in the form of infringement on the program copyright. However, the reproduction of the program created and distributed by the act of infringement is considered as an infringement upon the acquisition of the reproduction of the program and its use for business purposes.

In light of the legislative intent and language of Article 29(4)2 of the former Program Protection Act, a person who creates a program copyright infringement by reproduction or adaptation cannot be deemed as a person who acquires a reproduction of a program made by an act of infringement under the said provision. Therefore, if a person is punished for a violation of Article 29(1) of the former Program Protection Act, it is sufficient to punish him/her as a violation of Article 29(4)2 of the same Act, and is not punished as a violation of

Article 29 (1) (see current Article 10 of the Copyright Act), Article 29 (4) 2 (see current Article 124 (1) 3 of the Copyright Act), Article 46 (1) 1 (see current Article 136 (1) 1 of the Copyright Act), and Article 46 (2) 2 (see current Article 136 (2) 4 of the Copyright Act) of the former Computer Program Protection Act (repealed by Article 2 of the Addenda to the Copyright Act, Act No. 9625 of April 22, 2009)

Defendant 1 and two others

Defendants and Prosecutor

Law Firm Mad Co., Ltd., Attorney Cho Young-ju

Seoul Southern District Court Decision 2014No1071, 1623 decided January 9, 2015

All appeals are dismissed.

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

1. As to the prosecutor's grounds of appeal

A. Article 29(1) of the former Computer Program Protection Act (amended by Act No. 9625, Apr. 22, 2009; hereinafter “former Program Protection Act”) provides that “no person shall infringe upon another person’s program copyright without a legitimate title by means of reproduction, adaptation, translation, distribution, publication, and transmission.” In addition, Article 29(4)2 of the same Act provides that “the reproduction of a program made by a person who knowingly acquired the reproduction of a program in violation of a program copyright shall use it for business purposes” shall be deemed as an act infringing the program copyright, and Article 29(1) and Article 29(4)2 of the same Act provides that “the person who knowingly acquired the reproduction of a program made in violation of a program copyright shall not use it for business purposes.”

Article 29 (4) 2 of the former Program Protection Act does not include the act of using a program itself in the form of infringement of the program copyright, but it is a provision prepared to ensure the effectiveness of the protection of the program copyright by deeming the reproduction of a program created and distributed by the act of infringement to be an infringement upon the knowledge of such circumstances and use for business.

In light of the legislative intent and language of Article 29(4)2 of the former Program Protection Act, a person who creates a program copyright infringement by reproduction or adaptation cannot be deemed as a person who acquires a reproduction of a program made by an act of infringement under the said provision. Therefore, if a person is punished for a violation of Article 29(1) of the former Program Protection Act, it is sufficient to punish him/her as a violation of Article 29(4)2 of the same Act, and is not punished as a violation of

B. The lower court determined that the reproduction of the program made by the Defendants in violation of the program copyright under Article 29(4)2 of the former Program Protection Act cannot be deemed to constitute a person who knowingly acquired the reproduction of the program made in violation of the program copyright as a person who revised the program of this case in the lower judgment. Such determination by the lower court is based on the above legal doctrine, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal doctrine on Article 29(4)2 of the former Program Protection Act

2. As to the Defendants’ grounds of appeal

A. As to the ground of appeal on occupational breach of trust

The lower court determined that the Defendants’ failure to return or discard the instant program and the user manual, which the victim company had in supply to Nonindicted Company 1 and others, constitutes a principal asset of the victim company’s trade secrets or business, and the Defendants’ failure to return or discard the instant program and user manual upon withdrawal from the victim company (hereinafter “Nonindicted Company 2”) for the purpose of developing a similar program by entering Nonindicted Company 2 after withdrawal of the victim company, constitutes a breach of trust, and the Defendants’ intent of breach of trust is also recognized.

Examining the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on occupational breach of trust or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

B. As to the ground of appeal on the violation of the Program Protection Act

The lower court determined that the copyright holder of the instant program is the victim company, and the Defendants developed programs for Nonindicted Co. 2 by using a significant portion of the instant program, thereby modifying the instant program.

In light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on program modification or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)