Plaintiff 1 and four others (Law Firm Han-gu, Attorneys Kim Do-ro et al., Counsel for the plaintiff-appellant)

Geumsung Publication Co., Ltd. and one other (Law Firm Ha & Yang, Attorneys Lee Soo-woo et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2009Gahap7071 Decided September 2, 2009

July 21, 2010

1. The part against the Defendants in the judgment of the court of first instance is revoked, and the plaintiffs' claims corresponding thereto are dismissed.

2. The costs of the lawsuit are assessed against the Plaintiffs.

1. With respect to the books stated in Appendix 1’s Schedule 1’,

(a) Defendant Gold Publishing Co., Ltd. (hereinafter referred to as Defendant Gold Publishing Co., Ltd.) shall not issue, sell, or distribute them;

(b) The defendant Korean-authorized Textbooks (hereinafter referred to as the "Defendant Korean-authorized Textbooks") will suspend publishing as an agent;

2. Defendant Gold Publishing Co., Ltd. shall pay to each of the plaintiffs 30 million won with 20% interest per annum from the day following the delivery of the written application for modification of the claim as of April 27, 2009 to the day of complete payment.

The same shall apply to the order.

1. The parties' assertion

The plaintiffs and the non-party asserted that they are the co-authors of Korean High School Textbook (hereinafter referred to as "the textbook of this case"). The defendants are corporations that issue and publish the textbook of this case. The defendant Geumsung published the textbook of this case against the plaintiffs' will and revised the textbook of this case as stated in [Attachment 2]. The defendant Korea Authorized Textbook violated the plaintiffs' right to maintain identity among the author's moral rights of this case by printing and distributing the revised textbook of this case on behalf of the plaintiffs and printing and distributing the revised textbook of this case. Thus, the defendants are obliged to suspend their infringement and compensate the plaintiffs for damages caused thereby.

The Defendants asserted that the part of the instant lawsuit seeking suspension of infringement is not a legitimate exercise of author’s moral rights by unanimous agreement among six co-authors. ② The modification of the instant textbook is in accordance with the suspension of the Minister of Education, Science and Technology under Article 26(1) of the Regulations on Textbooks as prescribed by delegation of Article 29(2) of the Elementary and Secondary Education Act, and the Plaintiffs agreed to comply with the correction order of the Minister of Education, Science and Technology, while the Plaintiffs submitted a written consent to the effect that they will faithfully perform the correction order. As such, Defendant Gold Publication’s correction of the instant textbook and the publication of the instant textbook of this case constitutes grounds for restriction of author’s moral rights or Plaintiffs’ infringement of author’s moral rights.

2. Facts of recognition;

【Fact- without any dispute, Gap’s evidence Nos. 1 through 4, Eul’s evidence Nos. 1, 2, 4, 6, 13 (including paper numbers)

A. The plaintiffs and the non-party are the co-authors of the textbook of this case, and the defendant Kusung publishing company is the publisher of the textbook of this case and the defendant Korea Authorized Textbook is a corporation that vicariously carries out the publication of authorized textbooks of middle and high school authorized textbooks including the textbook of this case.

B. On March 24, 2001, the plaintiffs and the non-party entered into a contract for publication of the following contents relating to the textbook work and publication of this case (hereinafter "the publication contract of this case").

(1) The plaintiffs and the non-party shall prepare plaintiffs in the textbook and guide book of this case in accordance with the 7th curriculum of the Ministry of Education (referring to the current Ministry of Education, Science and Technology, and the Ministry of Education, Science and Technology) and deliver them to the defendant golding judge at least four months prior to the completion of the application for authorization (paragraph (1)), and the defendant gold publishing company shall produce the authorization copies of the textbook and guide book of this case in accordance with the prescribed procedure using the plaintiffs and materials delivered by the plaintiffs and the non-party (paragraph (4)).

(2) When the Ministry of Education, Science and Technology instructs correction and reorganization of the textbooks and guide books of this case, the plaintiffs and the non-party shall deliver the plaintiffs and materials for correction and reorganization to the defendant gold-sing judge so that they can complete revision and reorganization work within the prescribed period. The defendant gold-sing company must revise and reform the contents of the textbook and guide books of this case within the prescribed period in accordance with the plaintiffs and the non-party's request and the direction of the Ministry of Education, Science and Technology (Paragraph 6).

C. On December 8, 2001, after the conclusion of the instant publication contract, the Plaintiffs and the Nonparty submitted to the Korea Institute of Curriculum Evaluation and Planning a consent letter that “the Minister of Education, Science and Technology shall faithfully implement the instructions given by the Minister of Education, Science and Technology for the smooth publication and supply of curriculum books and the prevention of educational irregularities.”

D. On October 30, 2008, the Minister of Education, Science and Technology recommended the Defendant’s Korea-authorized Textbook to revise some of the contents of the textbook including the textbook of this case, and Defendant Kusung published the said recommendation to the Plaintiffs. The Plaintiffs presented an opinion that the correction recommendation with respect to a large number of items can not be accepted, separately from the contents of the correction recommendation.

E. After November 26, 2008, the Minister of Education, Science and Technology revised some of the textbooks of this case through Defendant Korea Authorized Textbook as stated in the “Direction for Correction of Authorized Books” column, and ordered the correction and supplementation to be submitted by November 28, 2008 (Evidence No. 4 of this Certificate, but only some of No. 20 or Nos. 20 or Nos. 24 of the same Note No. 20 or Nos. 3-1 or 10 of the Text Nos. 10 of the Text Nos. 3-1 and 3-2 after consultation with the Ministry of Education, Science and Technology, and submitted the textbook of this case to the Minister of Education, Science and Technology after consultation with the Ministry of Education, Science and Technology for the revision of the Text No. 3-1, the Ministry of Education, Science and Technology approved the correction of the textbook of this case, and the Minister of Education, Science and Technology after consultation with the Ministry of Education, Science and Technology for the subsequent approval of the Text No. 2 of this case. 201.208.

F. After that, the Defendants published and distributed the revised textbook as stated in the instant correction instruction.

3. Whether the part demanding the suspension of infringement among the lawsuit of this case is legitimate

Authors’ moral rights in a joint work may not be exercised without the unanimous agreement of all the authors (Article 15(1) of the Copyright Act).

Of the six co-authors of the textbook of this case, only five persons other than the Nonparty among the six co-authors of the textbook of this case claimed the infringement of author's moral rights on the textbook of this case and filed the lawsuit of this case. However, according to the statement of Gap evidence No. 10, the non-party could have acknowledged the fact that the non-party appointed the plaintiff 1 as the representative author on April 10, 2009, after the lawsuit of this case was filed. Thus, the non-party, the co-author of this case, in relation to the exercise of author's moral rights

Therefore, the defendants' assertion that the part of the lawsuit of this case is not legitimate is without merit.

4. Whether author's moral right has been infringed.

The author has the right to maintain the integrity of his content, form, and title of his work (Article 13(1) of the Copyright Act). Thus, the content of the work cannot be corrected or modified without the author’s permission. According to the facts of recognition, the fact that the Plaintiffs, as co-authors of the textbook of this case, expressed that they cannot modify the content, is recognized that the Defendants published and distributed the content of the textbook of this case even though they expressed that they cannot modify it.

However, for the following reasons, the Defendants’ correction and publication of the textbook of this case cannot be deemed as infringing Plaintiffs’ moral rights.

First of all, the plaintiffs asserted that Defendant Gold Publication arbitrarily revised the textbook of this case as stated in the “AD 2’s correction”. However, as shown in the facts of recognition, the defendants’ correction of the textbook of this case is in accordance with the correction instruction of this case by the Minister of Education, Science and Technology, and thus the Defendant Gold Publishing Company cannot be deemed to have arbitrarily revised the textbook of this case.

Next, according to the facts of recognition, when the Ministry of Education, Science and Technology orders the correction or revision of the textbook of this case by the Ministry of Education, Science and Technology through the contract of this case, the plaintiffs agreed to deliver the plaintiff and materials for the revision or revision to the defendant Geumsung within the prescribed period. On the other hand, after the contract of this case, the Minister of Education, and Science agreed to faithfully implement the instructions of the Minister of Education, Science and Technology for the smooth publication and supply of the curriculum books and the prevention of educational irregularities. In this regard, Article 26 (1) of the Regulations on the Curriculum enacted under delegation of Article 29 (2) of the Elementary and Secondary Education, the Minister of Education, Science and Technology may order the author or publisher to revise the curriculum books in the case of the authorized book of this case, and Article 38 subparagraph 1 of the same Act provides that the Minister may order the author or publisher to revise the textbook of this case within the scope of 10 years if the authorized book of this case violated the provision of this case or orders under this provision, the Minister of Education, Science and Technology may order the author or publisher of this case 2.

Ultimately, the Plaintiffs decided to comply with the suspension of authorization when the Minister of Education, Science and Technology gives lawful orders for correction of the textbook of this case through the publication contract of this case and the consent of the application for authorization. The Defendants, as long as they published, published, and distributed the textbook of this case according to the lawful suspension of authorization of this case by the Minister of Education, Science and Technology, they cannot be deemed to have infringed the Plaintiffs’ moral rights due to the correction of the textbook of this case and the publication and distribution of the textbook of this case. Thus, the Plaintiffs’

5. Conclusion

Therefore, the plaintiffs' claim of this case against the defendants is dismissed in its entirety due to the lack of reason, and since the judgment of the court of first instance is unfair with some different conclusions, the part against the defendants in the judgment of the court of first instance which accepted the defendants' appeal and dismissed the plaintiffs' claim corresponding thereto. It is so decided as per Disposition.

Judges Lee Ki-taik (Presiding Judge)