In a case where Company A, which is engaged in online educational business, sought confirmation of the absence of an obligation to compensate for damages caused by infringement on copyright infringement, in a case where Party B, who continued to provide a dynamic image lecture produced by using the reading materials of Company B, had been terminated at the expiration of the period, and sought confirmation of the absence of an obligation to compensate for damages caused by infringement on copyright infringement, the case holding that Company A is liable to compensate for damages caused by infringement on the right to reproduction and the right to create derivative works, etc.

In a case where Company A, which runs online educational business, sought confirmation of the absence of an obligation to compensate for damages caused by infringement on copyright against Party B, the dynamics produced by using the dynamics of Company B, even after the expiration of the period under which the contract for the use of the publication related books was concluded with Company B, and sought confirmation of the absence of an obligation to compensate for damages caused by infringement on copyright, the case held that the above cinematographic lectures constitute a derivative work of Company B’s teaching materials since the contents are merely modified, increased, or decreased to the extent that they maintain substantial similarity with Company B’s teaching materials, and the act of Company A paid the dynamics to the students of the dynamics constitutes “an act of citing them in conformity with fair practices within the reasonable scope for education” under Article 28 of the Copyright Act, and it cannot be deemed that it constitutes a fair use of copyrighted works as provided for in Article 35-3 of the Copyright Act, on the grounds that the infringement on the right to reproduction and the right to compensate for damages caused by infringement on the right to reproduction, etc.

Articles 5, 16, 22, 28, 35-3, 125, 125-2, and 126 of the Copyright Act

Mesterdi Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Kang Tae-chul et al., Counsel for the defendant-appellant)

Chang cost Co., Ltd. (Law Firm Purpose, Attorneys Nam Jong-chul et al., Counsel for the defendant-appellant)

January 27, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

It is confirmed that there is no obligation of the Plaintiff to compensate the Defendant for damages due to the Plaintiff’s infringement of copyright of each of the teaching materials listed in the attached Table 1 list on each of the reading materials listed in attached Table 2.

1. Basic facts

A. The Plaintiff is a company running online education business, etc., and the Plaintiff’s Internet website “www.mest udy.net” (hereinafter “Plaintiff’s website”) provides users with dynamics and videos related to internal and internal affairs. The Defendant is a company publishing books related to education, such as textbooks and evaluation issues house, etc.

B. On February 17, 2011, the Defendant acquired the right of publication and the right of production of derivative works on the Defendant’s teaching materials from the author of each of the teaching materials listed in the separate sheet No. 2 (hereinafter “Defendant’s teaching materials”), and entered into a contract to use the Defendant’s teaching materials on the Plaintiff’s use of the Plaintiff’s motion picture lectures (hereinafter “instant contract”) with the Plaintiff, and the main contents are as follows.

The Plaintiff and the Defendant, included in the text of this Act, enter into a contract as follows with respect to the provision of services by the Plaintiff on the Plaintiff’s website and the website designated by the Plaintiff using educational publications. Article 3 [Contents of educational publications] ① Educational publications provided by the Defendant to the Plaintiff are as follows: - Textbooks (1) of creative high class (high class) textbooks, self-practices, and evaluation issues (ju 2), [permission for the use of educational publications and the production and use of classical films] ① The Defendant permits the Plaintiff to produce and use classical lectures by using the educational publications under Article 3. ① The Plaintiff shall be allowed to enter into a contract under Article 5 [contract and classical books] ① the Plaintiff’s fee for the production and use of classical films using the educational publications under Article 4, and the Plaintiff shall be paid - down payment with the down payment and the down payment of the contract amount of KRW 100,000,000,000,000 for the total contract period of KRW 10,000,000.

Note 1) Textbooks;

Note 2) Evaluation Questions

C. According to the conclusion of the instant contract, the Plaintiff produced each of the video lectures listed in the separate sheet No. 1 (hereinafter collectively referred to as “instant video lectures”) between February 14, 201 and November 19, 201, using the Defendant’s teaching material, and provided the same to the students via the Plaintiff’s website.

D. As the contract of this case terminated upon the expiration of the term, the Plaintiff and the Defendant were conducting negotiations on the re-contract, but no agreement on usage fees, etc. was reached, which eventually led to the conclusion of negotiations on re-contract around May 2, 2012. The Plaintiff continued to provide the instant video lectures on the Plaintiff’s website even after the conclusion of negotiations on re-contracts.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 7 through 10, Eul evidence 1 through 5 (including branch numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. Even if the Defendant’s teaching material was used in the instant audio-visual lecture, the instant audio-visual lecture is carried out by the original teaching method of the instructor who is undergoing the lecture, and its content constitutes an independent work that is not substantially similar to the Defendant’s teaching material.

B. Even if it is not so, the Plaintiff’s use of the Defendant’s teaching material for the instant video lectures constitutes “an act of citing a work already made public in compliance with fair practices within a reasonable scope” as provided by Article 28 of the Copyright Act, or “an act of unfairly impairing the author’s legitimate interest without conflict with the method of ordinary use of a work,” and thus, does not infringe the copyright of the Defendant’s teaching material.

C. Therefore, as long as the Plaintiff’s instant video lectures infringed on the copyright of the Defendant’s teaching material, there is no liability for damages against the Defendant, and as long as the Defendant contests this, there is a benefit to seek confirmation from the Plaintiff.

3. Determination

A. Determination as to whether the instant video lectures constitute an independent work not substantially similar to the Defendant’s teaching material

1) Relevant legal principles

Even in cases where a work is modified, increased or decreased, or changed to a degree that is deemed to have added a new creative nature based on the original work, if the work maintains the substantial similarity with the original work, it shall be deemed to be a derivative work against the original work. Thus, if the work based on the original work is deemed to have been a new work independent from the original work, it shall reach the extent that it cannot be deemed to have maintained a substantial similarity with the original work because it is difficult to understand the creative nature of the expression of the original even though it was used as a new work independent from the original work, because it is beyond a certain extent, any correction, increase, or decrease, or change that is made based on the original work.

2) In the instant case:

In light of the above legal principles, in light of the following circumstances, it is reasonable to view that the contents of the motion picture of this case are nothing more than modification, increase, decrease, or modification to the extent that the actual similarity with the Defendant’s teaching material is maintained, and therefore, the motion picture of this case constitutes a derivative work of the Defendant’s teaching material.

① In order for students to easily understand and crypate the contents of fingerprints in preparation for various tests, or to learn the methods of writing problems, the following is included in the instructor’s name’s text and method. In the case of the above explanation, even if the creativity of the instructor’s own expression method is acknowledged, the instant video lectures are basically based on the Defendant’s teaching material, and an instructor’s instruction is underway by reading or printing out the part of the Defendant’s teaching material.

② Considering the parts that can be recognized as the creative expression of the relevant instructor, considering the characteristics of the Korean language subject, the fingerprints of the textbook or the problem book itself becomes an important substance. Moreover, considering the purpose of the instant video lecture and the age of students, the overall contents and methods of the instant video lecture cannot be considerably out of the basic structure, structure, and fingerprints of the Defendant’s teaching material.

③ Therefore, if the part cited by Defendant’s teaching material is excluded from the dynamic image lecture of this case, the remaining part alone does not seem to have a practical value as a lecture for the curriculum of Korean language in high school.

④ In addition, based on the stenographic records on the video lectures of this case, it is reasonable to view that each of the above sections of the same kind constitutes a part in which the Defendant’s teaching materials are used without substantial alteration or substantial alteration, as it is, at least the same time, the part of the same kind of the same kind of sound is deemed to be a part in which the creativity of the Defendant’s teaching materials is recognized, even though it cannot be deemed to be a part in which the Defendant’s teaching materials is used without substantial alteration or substantial alteration.

B. Determination as to whether the offer of the instant video lectures constitutes Article 28 of the Copyright Act

1) Relevant legal principles

Article 28 of the Copyright Act provides that a work already made public may be quoted for news report, criticism, education, research, etc. within a reasonable scope consistent with fair practices. The determination of whether such work conforms to fair practices within a reasonable scope should be made by comprehensively taking into account the purpose of quotation, nature of the work, the contents and quantity quoted, the method and form in which the work is used, the general concept of readers, and whether the demand for the original work is replaced. In this case, it is not always recognized as non-profit use. However, the use for profit-making education purposes is considerably narrow compared to the use for non-profit educational purposes (see, e.g., Supreme Court Decision 97Do227, Nov. 25, 1997). In addition, in order to fall under the above provision, the purpose of the quotation is limited to news report, criticism, education, and research, but the “justifiable scope of quotation” of the work should be recognized as reference materials, such as the relation of the work, i.e., the citing work, i., 97 main works (see, etc.).

2) In the instant case:

In light of the above legal principles, in light of the following circumstances, which can be recognized by comprehensively taking account of the evidence mentioned above and the purport of the entire pleadings, the Plaintiff’s act of providing the broadcast of the video of this case for a fee to the students may not be deemed to constitute “an act of citing a work made public within the reasonable scope and consistent with fair practices” as stipulated in Article 28 of the Copyright Act, and thus, the Plaintiff’s assertion on this part cannot be accepted.

① The Plaintiff’s production of the instant video lecture by using the Defendant’s teaching material is based on the purpose of education in the Korean language of high school. However, the Plaintiff is a company mainly engaged in the online lectures, which provides the instant video lecture for subscription fees and tuition fees from students, and the fundamental nature of its use is commercial and profit-making. Therefore, the scope of which the use of the instant video is permitted is considerably narrow.

② Furthermore, in the instant video lecture, the contents of the Defendant’s teaching material are extracted from substantial parts, and is cited in such a way as reading or writing, and almost all parts of the Defendant’s teaching material are subject to lectures. Given the characteristics of the Korean language subject, the contents, such as fingerprints of the textbook or problem book, play an important role in lectures.

③ In light of the above circumstances, if the parts cited from the Defendant’s teaching material were excluded from the dynamics of this case, the remaining parts alone can not be deemed to have a substantial value as a lecture for the curriculum of Korean language in high school. If so, it is difficult to evaluate that the fingerprints, problem, etc. of the Defendant’s teaching material, which is the part for the use of the person, are in a relationship with a simple beams for the instruction of the instructor in question as a supplementary nature as a teaching material. Rather, it is reasonable to view that the dynamics of this case, which is the part for the use of the person, is in a relationship with an incidental nature as a material for the instruction of the instructor in question. Rather, the expression of

④ From the perspective of the substitution of demand, the instant video lectures were stored in the server managed by the Plaintiff, provided continuously to the students for a certain period of time, the nature of the online lectures does not limit the local level, and the students may view the instant video lectures repeatedly. Accordingly, the copyright holders of the Defendant’s teaching material may considerably damage the potential value that the instant video lectures may enjoy in the online lecture market as they are used for profit-making and commercial purposes.

C. Determination as to whether the offer of the instant video lectures constitutes Article 35-3 of the Copyright Act

1) Article 35-3 of the Copyright Act

Article 35-3 of the Copyright Act provides that in a case where the use of a work does not conflict with the ordinary method of exploitation and does not unreasonably prejudice the author’s legitimate interest, it shall be permitted to exploit the work for news report, criticism, education, research, etc., and the determination of whether it is applicable: ① the purpose and nature of exploitation such as commercial or non-profit, etc.; ② the type and use of the work; ③ the proportion and importance of the part used in the whole work; ④ the impact of the use of the work on the current market or potential market or value of the work (the aforementioned provision was newly established as amended by Act No. 11110, Dec. 2, 201).

2) In the instant case:

In light of Article 3-b. 2-2 of the above, the plaintiff's act of providing the dynamics of this case to the students of this case with the purpose of providing the dynamics of this case and commercialization thereof, ② the type and use of the dynamics of this case and the defendant's teaching material of this case, ③ the proportion and importance of the cited parts of the defendant's teaching material in the dynamics of this case, ④ the potential market value of the defendant's teaching material due to the provision of the dynamics of this case, etc., is not deemed to constitute fair use of works as provided in Article 35-3 of the Copyright Act, in a case where the plaintiff's act of providing the dynamics of this case to the students of this case does not conflict with the normal method

D. Determination as to whether the plaintiff's liability for damages against the defendant exists

1) According to the above review, the Plaintiff’s act of producing the video lectures of this case and providing them to the students by using the Defendant’s teaching materials constitutes an act of infringing the Defendant’s right of reproduction and right of production of derivative works against the Defendant’s teaching materials (see Article 5(2) of the Copyright Act even if a derivative work is protected as an independent work, it does not affect the author’s right of the original work (see Article 5(2) of the Copyright Act). Accordingly, the Plaintiff is liable to compensate the Defendant for damages arising from copyright infringement pursuant to Articles 125 through

2) Meanwhile, in the event that the Plaintiff’s liability for damages is recognized against the Defendant, the Plaintiff asserts that the amount of damages does not exceed 0.086% of the sales of the instant video lectures (specific basis for calculation is as follows).

0.086% = 5% of the discount rate (ordinary discount rate of learning works) ¡¿ 5.21% (state 7) ¡¿ Contribution 33.3% (the extent that the Defendant’s teaching material contributed to the sales related to the lectures of the video of this case).

Note 7) 5.21%

However, there is no reasonable ground to regard the amount of damages as claimed by the Plaintiff, and there is no evidence to recognize the rate of discount, actual similarity, and degree of contribution, so the above assertion by the Plaintiff cannot be accepted.

In addition, as seen earlier, the plaintiff and the defendant set down down down down down down down down down down down down down down the down payment as to the fee for the use of the Defendant’s teaching material at the time of the conclusion of the contract of this case as KRW 10 million with 15% of sales (including the first half, the first half, and the first half) (The plaintiff asserted that the defendant had concluded the contract of this case with the defendant without any choice to minimize the damages to the students even though the defendant unfairly demanded excessive fees at the time of entering into the contract of this case, but the entries in the evidence Nos. 16 through 19 alone are insufficient to recognize the plaintiff’s assertion, and there is no other evidence to acknowledge the above assertion.), the circumstances leading up to the conclusion of the contract of this case by the plaintiff and the defendant as to the fee for the use of the Defendant’s teaching material at the time of the contract of this case, including the content of the contract for use under the publication contract concluded between the defendant and the other party’s private practice at the time of the contract of this case, and the content of the contract of this case.

3) Therefore, barring any special circumstance, the damages that the Plaintiff is liable to pay to the Defendant on the ground of copyright infringement on the Defendant’s teaching materials shall be deemed to reach the amount equivalent to the usage fees stipulated in the instant contract (However, the Defendant, a creditor, did not provide specific arguments or evidence regarding the amount of damages, and the submitted evidence alone does not seem to be capable of calculating the specific amount of damages. Therefore, the damages shall not be determined further.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment 1] List of Plaintiff’s video lectures: omitted

[Attachment 2] List of Defendant’s Teaching Materials: Omitted

Judges 146 (Presiding Judge)

1) Of the Defendant’s teaching materials, the same is as each teaching material listed in [Attachment 1 and 2] of [Attachment 2].

2) Among the Defendant’s teaching materials, the same as each teaching material listed in paragraphs 3 and 4 of [Attachment 2] of [Attachment 2] (However, in the case of teaching materials listed in paragraph 4 of [Attachment 2], the issue date is limited to those after March 30, 201).

Note 3) Even if the original work is somewhat modified, increased or decreased, or changed, if it is not added to a new creative nature, it shall be deemed as a reproduction.

Note 4) ① The reference to item (i) is not simply referred to in the title of the teaching material but only when it is used to convey a particular meaning, ② read the first word, etc. of the fingerprints in order to inform the points of the teaching material that is strong to the students, i.e., the point of the lecture, i., the first word, etc. of the fingerprints in order to identify the points of the teaching material that are strong to the students is excluded from the objects of the similarity judgment, ③ if the repetition appears to have been repeated to convey a specific meaning, the reference to item (ii) is included in the objects of the similarity judgment only when the repetition appears to have been repeated to convey the first word, etc. in the course of reading the literature among the habits of the instructors, and ④ if the statement of the instructor based on the text of the Defendant’s teaching material is manifestly different from the original text of the Defendant’

(5) ① The corresponding part of each of the textbooks ( Textbooks and the assessment business district) listed in [Attachment 2 List 1 and 3: 61,688. ② The corresponding part of each of the textbooks ( Textbooks and the assessment business district) listed in Attached 2 List 2 and 4: 79,906.

(2) Paragraph (2) of each week 5: 496,485 (=531 pages 535 x 935 x 935 x 5) respectively: 496,485 (=535 x 935)

Note 7) Plaintiff’s instant case see, e.g., 10 to 12, Nov. 17, 2014