2018Do144 Violation of the Copyright Act

Defendant 1 and three others

Defendant 1, Defendant 2, Defendant 3, and Prosecutor (Defendant 4)

Law Firm Sang-ok et al.

Suwon District Court Decision 2017No567 Decided December 11, 2017

July 15, 2021

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

The lower court reversed the judgment of the first instance court that found Defendant 4 guilty on the grounds that there was no proof of crime, and sentenced Defendant 4 not guilty. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal doctrine on the number of crimes in violation of the Copyright Act and the criminal intent, thereby adversely affecting the conclusion

2. Determination on the grounds of appeal by Defendants 1, 2, and 3

A. Article 137(1)1 of the Copyright Act provides that a person who makes a work public under the real name or pseudonym of a person other than an author shall be subject to criminal punishment. This provision aims at protecting not only the real author’s personal right indicated as the author, but also the social confidence in the name of the author in one’s work against his/her will, contrary to his/her own intent, by a person other than the author. Considering such legislative intent, if a person other than the author is expressed as the author and made the work public, the crime under the above provision is established unless there are special circumstances where it is deemed that the general trust in society is not undermined in light of social norms, and the actual author’s consent is not different even if such publication made with the person other than the author (see, e.g., Supreme Court Decision 2016Do16031, Oct. 26, 2017). In addition, if a person other than the actual author participates in the crime of making the work public by indicating his/her work as the author, then the accomplice may be punished under Article 137(1).

In light of the literal meaning of such publication and the legislative intent of Article 137(1)1 of the Copyright Act, a publication of a work under the Copyright Act refers to the publication of a work to the public by means of public performance, public transmission, or exhibition and by other means (Article 2 subparag. 25 of the Copyright Act). In light of the literal meaning of such publication and the legislative intent of Article 137(1)1 of the same Act, even if a work, which is the subject of false representation, has been previously published, the establishment of a crime under the said provision does not affect (see, e.g., Supreme Court

B. The lower court convicted Defendants 1, 2, and 3 of the facts charged. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the establishment of a crime of violating the Copyright Act.

3. Conclusion

The appeal by the prosecutor and the defendant 1, 2, and 3 is dismissed in entirety as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee

Justices Kim Jae-hyung

Justices Ansan-chul

Justices Lee Dong-gu