Defendant

Defendant

Enforcement Decree of the Republic of Korea

Attorney Jin-hun (Korean National Assembly)

Seoul Central District Court Decision 2009 High Court Decision 2196 Decided November 11, 2009

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

1) The Defendant did not exhibit the translation of “kniver theory” jointly translated with the victim Nonindicted Party on the Internet site of ○○○○ in publication of books, and did not have existed on the said Internet site.

2) 위 “칼빈주의 예정론” 번역본은 원저작물인 「로레인 뵈트너」 저술의 “칼빈주의 예정론”에 다소의 수정·증감을 가한 것에 불과하여 독창적인 2차적 저작물이라고 할 수 없다.

3) Since the victim did not have obtained permission from the copyright holder of the original work, the victim is not the copyright holder of the said translation.

4) Since the Defendant acquired the right of publication on the Korean version from the publishing company only the U.S. language having the right of publication on the original work, the Defendant has the right to exhibit and publish the translation of the above “presumptive theory of kniveism”.

B. Unreasonable sentencing

The punishment of the lower court (a fine of three million won) is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

1) As to the Defendant’s assertion that the aforementioned translation was not displayed on the Internet site of ○○○○○○ in the book publication

Comprehensively taking account of the evidence duly adopted and examined by the court below, since the defendant, as stated in the judgment of the court below, stated that the translation of the above "Crhinism" which was jointly translated with the victim non-indicted in 1990 as stated in the judgment of the court below, was solely translated by the defendant without the victim's permission, and it can be sufficiently recognized that the defendant displayed it on the Internet site of ○○○ in the publication of books

2) As to the assertion that the above translation was not a derivative work

위 번역본은 영어로 저술된 원저작물인 「로레인 뵈트너」 저술의 “칼빈주의 예정론”을 한글로 번역한 것인바, 번역저작물에는 원저작물의 창작성과는 별도로 번역자의 창작성이 있으므로, 위 번역본이 원저작물에 다소의 수정·증감을 가한 것에 불과하여 2차적 저작물이 아니라는 피고인의 위 주장은 이유 없다.

3) As to the assertion that the victim was not the copyright holder of the above translation

Even if the victim did not obtain permission to exploit the original work from the copyright holder of the original work, the victim's second copyrighted work without the consent of the author is also protected as an independent copyrighted work, so the above assertion by the defendant is without merit.

4) As to the assertion that the defendant has the right to exhibit and publish the above translation

Even though the defendant acquired the right of publication in Korean from the holder of the right of publication of the original work, the scope of the defendant's acquisition of the right of publication includes the right to translate and publish the original work on his own, and it does not include the right to exhibit and publish the above translation, which is a work separate from the original work or the original which the defendant himself intends to translate. Therefore, the defendant

B. Determination on the assertion of unfair sentencing

In full view of the fact that the Defendant had already been sentenced to a fine of two million won in the year 2006 for the criminal facts that reproduced and published the above translation against the same victim, and other various circumstances that form the conditions for sentencing as shown in the records and arguments, such as the background leading to the instant crime and the circumstances after the commission of the crime, etc., it is difficult to deem that the lower court’s punishment is too unreasonable.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since there is no reason to appeal.

Judges Sung Ho-ho (Presiding Judge)