Korea Music Copyright Association (Law Firm Song, Attorneys Cho Yong-ok et al., Counsel for the plaintiff-appellant)

[Defendant-Appellee] Defendant 1 and 2 others (Attorney Go Young-chul, Counsel for defendant-appellee)

February 22, 2006

Seoul Central District Court Decision 2004Gahap36876 Delivered on May 20, 2005

1. The plaintiff's appeal against the defendants is dismissed in entirety.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance court shall be revoked. The defendants shall pay to each plaintiff 149,478,928 won, and from April 23, 2002, 5% per annum from the date of delivery of a copy of the application form for correction of the claim and cause of this case to the date of delivery of a copy of the application form for alteration, and 20% per annum from the next day to the date of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by adding up the whole purport of the pleadings to the entries in Gap evidence 1, Gap evidence 2-1 to 20, Gap evidence 3, 4, Eul evidence 1-5, and Eul evidence 3:

A. On February 23, 198, pursuant to Article 78(1) of the Copyright Act, the Plaintiff is a corporation that operates copyright trust management business, such as management of musical works and approval for use of musical works, after obtaining permission from the Minister of Culture and Tourism. Defendant leap, etc. is a corporation that operates music planning business under the trade name of “DDR” and Defendant Domin Media (hereinafter “Defendant Company”) is a corporation that operates music record and distribution business.

B. From August 1991 to August 1999, the Plaintiff entered into a copyright trust agreement with each author and the author (hereinafter “authors of this case”) of the musical work with the indication “0” column as to whether the above list was entrusted among the musical works indicated in the separate sheet (hereinafter “instant musical work”). During the contract period (the contract period shall be five years, and the contract period shall be automatically extended by ten years, and the contract period shall expire after the expiration of the copyright term), the Plaintiff entered into a copyright trust agreement with the author of this case to distribute the royalty, etc. acquired by the management to the author of this case.

C. Around April 2002, Defendant 1 planned a sound recording name including the instant copyrighted work, “beviet Nos. 5.5 Spanish social m.,” made it by entering into a contract with the Defendant Company by dividing the above Am. into three parts of CD and TAPE and five CD 1, and sold the said CD (including V CD) and 240,349 (including the said CD) from April 13, 2002 to December 31, 2002, the total sum of 240,349 (including the said CD 131,592, and TAPE 108,757, hereinafter “instant compilation records”) in the CD amounting to 14,900 won per opening, and TAPE 7,600 won per 7,600 won.

D. Among the grains contained in the compilation records of this case, 39 of the total number 58 of the 58 stories, 39 of the 58 stories, which were contained in the list of the CD1 and TPP1, excluding the 2's 5's 5's 5's 5's 58's 39's 39's 39's 1's 30's 58's 58's 1's 58's 39's 39's 58's 1's 58's 1's 1's 1's 5's 1's 5's 1's 1's 5's 1's 5's 5''''''''''''''''''''''''''s 1''''''''''s 1's 'the 4's 'the 1's 's 's 's 's 's 's 's 's.

On the other hand, the original musical work of this case is "the first fixed musical work of this case", and the original musical work of this case and the compilation musical work of this case are composed solely of the reflect in which the number of "belis" was omitted to sing or singing.

E. Defendant leap, etc. planned the production of the compilation records of this case. Defendant Company planned the production of the compilation records of this case, and Defendant Company produced the original records for sale by using Defendant leap, etc. offered by Defendant leap, and supplied them to nationwide wholesalers. The Defendants did not obtain a separate license from the Plaintiff in producing and selling the compilation records of this case.

2. Determination on the claim for damages caused by copyright infringement

A. The parties' assertion

(1) The Plaintiff asserts that: (a) at the time of the production of the original part of this case, Defendant Prostitution did not obtain permission to exploit the instant copyrighted musical work from the author of this case; (b) even if Defendant Prostitution obtained permission to use the original part of this case, the time when the permission was obtained after the Plaintiff entered into a copyright trust agreement with the said author; (c) the scope of permission to use and distribute the original part of this case is limited to the manufacture and sale of the original part of this case; and (d) the scope of permission to use and distribute the original part of this case’s original part of the original part of this case’s original part of the original part of this case’s work is limited to the production and sale of the original part of the original part of this case’s work; and (e) it goes beyond the above scope of permission to produce new edited musical records together with other new ones by changing the order of arrangement; and (e) the Defendants did not obtain permission to use again from the Plaintiff, the copyright holder of this case, but did not obtain such permission to use from the Plaintiff.

(2) On this basis, the Defendants asserted that the Defendant’s act of producing and selling the compilation phonogram of this case was duly exercised the right of reproduction and distribution as neighboring rights against the original copy of this case within the scope of the authorization of use at the time of the production of the original copy of this case, and that the Defendants did not infringe the Plaintiff’s copyright since the Plaintiff’s act of producing and selling the compilation phonogram of this case was duly exercised the right of reproduction and distribution as neighboring rights to the original copy of this case.

B. Determination

(1) Whether Defendant leap, etc. was duly authorized to use the original content of this case

(A) In full view of the purport of the arguments in Eul evidence 2, Eul evidence 4-1, 2, and Eul evidence 5-1, 5-1, and 5 of Eul evidence, ① from among the authors of this case, the author of this case is entitled to use the above copyrighted musical work of this case for the following reasons: (a) from around 1997 to around 2001, the producer of this case was entitled to use the copyrighted musical work of this case for the production of the copyrighted musical work of this case without specific evidentiary documents, such as the original rain, Kim Jong-ra, Lee Jong-hee, Cho Jong-hee, Cho Young-hee, Cho Young-hee, Lee Young-hee, Jeon-young, Lee Young-chul, etc.; (b) the producer of this case was entitled to use the copyrighted musical work of this case for the production of the copyrighted musical work of this case for the production of the copyrighted musical work of this case, and (c) the producer of this case was entitled to use the copyrighted musical work of this case for the production of the copyrighted musical work of this case without specific evidentiary documents such as contract or receipts.

(B) However, prior to obtaining permission to exploit the original musical work of Defendant 1 from the author of this case, the author of this case entrusted his copyright to the Plaintiff. Thus, in the production of the original musical work of Defendant 2, it shall not be the author of this case. However, in full view of the entire arguments in the testimony of Defendant 6-1 and 2 as well as witness Kim Dong-dong, the Plaintiff’s use of the original musical work of this case shall be deemed to have been approved by the Plaintiff from the time of production of the original musical work of this case, and the Plaintiff shall not be deemed to have been authorized to use the original musical work of this case, and the Plaintiff shall not be deemed to have been authorized to use the original musical work of this case from the date of sale of the original musical work of this case to the Plaintiff for the purpose of using the original musical work of this case. The Plaintiff shall not be deemed to have been authorized to use the original musical work of this case to have been authorized by the producer of the original musical work of this case, and the Plaintiff shall not be deemed to have been authorized to use the original musical work of the original musical work of this case.

(2) Whether the instant permit for use includes the permission for the production and sale of the instant compilation records

(A) In full view of the following facts: “A” or “A” is a sound record consisting of one-half of the same number, “B” or “B”, and the edited record is also a sound record produced by cultivating and heating the instant new music,” as acknowledged above; the evidence adopted earlier and evidence Nos. 2, 4-1 and 2 were written at the time of obtaining permission to use the instant copyrighted musical work from the instant authors; the production of “B” or “B” or “B”; the production of the instant copyrighted musical work, including the subject of music editing rights and the frequency of production; the production of the instant copyrighted musical work; the production of the instant copyrighted musical work, including the selection of media; the production of the instant copyrighted musical work, and the production of each of the instant copyrighted musical work, and the production of the instant copyrighted musical work, including the production of the instant copyrighted musical work, are not subject to any specific agreement on the author’s use of the instant copyrighted musical work; and the production of the instant copyrighted musical work, including the production of the instant copyrighted musical work.

According to the above facts, although Defendant 1 and the author of this case did not expressly agree whether the production and sale of the edited phonogram is included in the scope of the validity of the permit to exploit the musical work of this case, it is uncertain whether the production process of the original phonogram of this case and the following circumstances are likely to collect investment costs and create profits even if the author of this case withdraws the musical work of this case, and it is more attention to maximize the revenue of the use of the musical work of this case through publishing, public performance and broadcasting, and it appears that he would be entitled to use the musical work of this case without any restriction on the production and sale of the edited phonogram of this case’s musical work of this case’s musical work of this case’s musical work of this case’s musical work of this case’s musical work of this case’s musical work of this case’s 3rd author and author of this case’s musical work of this case’s 3rd author’s license to use the original musical work of this case’s musical work of this case.

(B) As to this, the Plaintiff did not only select 39 of the total 58 of the Compilations in this case, but also did not change their singing and reflects on the 58 of the Compilations, but also reduced the 30 seconds of the original 4 minutes by reducing the singular part and the middle head part of the singular part, and changed the order of arrangement, and the 2 of the singular. The Plaintiff argued that the production of singular records is not an act of reproducing the singular part belonging to the scope of neighboring copyright of the singular producer, and that the singular part of the singular part of the singular part and the singular part of the singular part were omitted, considering the singular part of the singular part and the singular part of the singular part contained in the singular part of the singular part and the singular part of the singular part of the singular part.

(3) Whether the right of reproduction and distribution held by Defendant leap, etc. as neighboring rights includes the production and sale of the compilation records of this case

Furthermore, the Copyright Act defines “musics” as fixed in a tangible object, and defines “musics” as the first fixed person in a phonogram (Article 2 subparag. 6 and subparag. 7 of the Copyright Act). The right to reproduce and distribute the phonograms is granted to phonogram producers (Article 67 of the Copyright Act). In this case, the right to reproduce the phonograms granted to phonogram producers as well as the right to reproduce and distribute the phonograms by presses itself, and also includes the right to reproduce and reproduce the phonograms by reproducing the phonograms or the right to record the sound in another fixed object by using the phonograms for broadcasting. Furthermore, phonogram producers may transfer the right to reproduce and distribute the phonograms as above and permit the use of the phonograms (Article 72 of the Copyright Act), but the above right may affect the copyright holder’s right to reproduce and distribute the phonograms (Article 62 of the Copyright Act).

In full view of the above provisions, the right of reproduction and distribution as a neighboring right of a phonogram producer is an independent right arising independently from the act of first fixing a musical work on a phonogram, and it is separate from the copyright of a musical work acquired by a author or a phonogram producer, etc. The right to reproduce or distribute the musical work at first fixed by the phonogram producer is not the right to use the musical work by the author's permission, but the right to reproduce or distribute the musical work at the original half, which is the inherent right of the neighboring copyright holder. Furthermore, the right to reproduce and distribute the musical work by the phonogram producer who produced the original half with the permission of use from the author of the musical work, shall be included within the scope of the right to reproduce and distribute the musical work from the author of the musical work, and in cases where the phonogram producer who produced the original half with the permission of use from the author of the musical work, as well as within the scope of the right to permit the reproduction and distribution of the musical work from the author of the copyrighted work, unless otherwise agreed by the author of the copyrighted work.

Therefore, Defendant leap, etc.’s act of producing and selling the compilation records of this case by reproducing the original records of this case and recording them on other records is an act within the scope of the right of reproduction and distribution of the phonogram producer, barring special circumstances.

(4) The theory of lawsuit

As above, it is reasonable to view that Defendant leap, etc. has obtained permission to use the instant compilation phonogram from the authors of this case to obtain permission to use the production and sale of the instant compilation phonogram, and even if there was no such permission, the act by the above Defendant’s production and sale of the compilation phonogram of this case is included as a matter of course in the scope of the right of reproduction and distribution as a phonogram producer. Thus, the act by the above Defendant’s production and sale of the compilation phonogram of this case without obtaining permission to use from the Plaintiff cannot be deemed as infringing upon the Plaintiff’s copyright even if it is any mother. Therefore, the Defendant’s production and sale of the compilation phonogram of this case at the request of Defendant leap, etc. cannot be deemed as infringing upon the Plaintiff’s copyright (the Plaintiff is not the producer of the original half of this case, and the Defendant company is not the producer of the instant publication of this case. However, as seen earlier, the Defendant company is not required to obtain permission to use the Plaintiff’s production and sale of the compilation phonogram of this case from Defendant le, etc., and it does not need to obtain the Plaintiff’s license.

3. Determination as to the claim of usage fees under the Copyright Collection Regulations

The plaintiff asserts that even though the production and sale of the compilation records of this case do not constitute copyright infringement, the defendants are obliged to pay the fees according to the copyright collection provisions of the plaintiff, since they are using the musical works of this case which the plaintiff holds author's property rights.

As seen above, the defendants' production and sale of the Compilation of this case by cultivating and heating the rice recorded in the original part of this case and the new music records of this case cannot be said to infringe the copyright of the copyright holder of this case or the plaintiff. The author of this case allowed the use of the musical work of this case before the new music rule was implemented, and received a fixed amount of music expenses from the above defendant while allowing the use of the musical work of this case to the defendant le light, the above defendant. Since there is no evidence to prove that the author of this case agreed to pay the royalty for the production and sale of the Compilation of this case in addition to the music cost received at the time of the above use permit, the author of this case cannot seek the royalty from the plaintiff and the plaintiff, the trustee, can not seek the payment of royalty against the defendants. Accordingly, the plaintiff's above assertion also is without merit.

4. Conclusion

Therefore, the plaintiff's claim against the defendants in this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal against the defendants is dismissed. It is so decided as per Disposition.

[Attachment List omitted]

Judges Dong-dong (Presiding Judge)