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헌재 2019. 11. 28. 선고 2016헌마1115 2019헌가18 공보 [저작권법 제29조 제2항 위헌확인]
[공보278호 1341~1349] [전원재판부]
Main Issues

Whether the part of Article 29(2) main text of the Copyright Act (amended by Act No. 14083, Mar. 22, 2016) which provides that, if no benefit in return for the relevant performance is paid from audience or audience, sound records or cinematographic works made public for commercial purposes (hereinafter referred to as “commercial sound records, etc.”) may be reproduced to the public for performances (hereinafter referred to as “public performance limitation provision”) and Article 29(2) main text of the Copyright Act (amended by Act No. 14083, Mar. 2, 2016) which applies mutatis mutandis the limitation on the right of performance to stage performances, sound records and broadcasts, which are the object of neighboring rights, infringes on the property rights of the holder of author’s property right and neighboring rights (negative) (hereinafter referred to as “owner of author’s property right, etc.”).

Summary of Decision

The purpose of adjudication is to enable the public to enjoy cultural benefits through the use of copyrighted works. Under certain conditions, any person may play commercial music records, etc. to the public by reproducing commercial music records, etc. is a means suitable for accomplishing the above purpose of legislation.

In the case of a public performance to which a provision subject to adjudication applies, the holder of author’s property right, etc. is not entitled to exercise his/her right to the relevant commercial music record, regardless of the existence of profit-making purpose. However, in the event that such provision falls under the exceptional grounds prescribed in the proviso of Article 29(2) of the Copyright Act and the Enforcement Decree of the Copyright Act, the holder of author’s property right, etc. may still exercise his/her right to the relevant commercial music record, etc., even though the said provision takes the form of the principle of restriction of property rights and exceptional guarantees, it may be deemed that legislators have selected such regulatory form in order to ensure the harmonious achievement of the public interest, such as the guarantee of property rights of the holder of author’s property right, and the benefit of public culture, as the relevant commercial music record, etc. is widely known to the public through a public performance under the provision subject to adjudication.

Furthermore, it is difficult to view that the clause subject to adjudication has a balance of legal interests because it is difficult to allow the holder of author's property right, etc. to exercise the right to permit a public performance that plays commercial music records, etc. or to prevent any disadvantage from receiving the price for such public performance is greater than the public interest that enables the public to enjoy cultural benefits through a public performance that plays commercial music records, etc.

Therefore, it cannot be said that the clause subject to adjudication infringes on the property right of the author of author's property right against the principle of proportionality.

Dissenting Opinion by Justice Kim Young-young, Justice Kim Jong-young, Justice Kim Jong-soo, and Justice

Article 29(2) of the Copyright Act is an exceptional case from a comparative perspective, and it does not lower the level of public cultural benefits on the ground that it is a country without a similar provision. In the event that commercial music records, etc. were reproduced at a business establishment, such as coffee specialty store, the content of the Enforcement Decree of the Copyright Act, which set the exception to the application of the foregoing provision, is expanded, and performance fees were paid, but it is difficult to find out data that public performance has been suspended from play commercial music records, etc. at the above business establishment, and it is difficult to confirm them in terms of ordinary experience. Therefore, it is difficult to view the subject matter of adjudication as a means suitable

Considering the language and text of Article 22(2) of the Constitution that provides that the rights of authors shall be protected by Act, in principle, a clause subject to adjudication that limits property rights, such as the holder of author’s property right, is against the minimum principle of infringement, and is widely recognized through the enforcement decree, which is a subordinate norm, this conclusion does not change. On the other hand, an uncertain indirect benefit is difficult to consider in determining the minimum violation of the infringement in this case.

Since the author of author's property right, etc. is expected not only to sell commercial phonograms, etc. but also to the secondary profit generated by public performance for profit-making purposes, it is expected that the commercial profit infringed by the clause subject to adjudication is included in his own legitimate interest. On the other hand, the public interest, which aims to achieve the clause subject to adjudication, is not nonexistent or has not been undermined, so it does not meet the balance of the legal interest.

Therefore, the clause to be tried is against the principle of proportionality.

It infringes on the property rights of the property holders.

Documents subject to adjudication;

The main sentence of Article 29(2) of the Copyright Act (Amended by Act No. 14083, Mar. 22, 2016)

The main sentence of Article 29(2) of the Copyright Act (amended by Act No. 11110, Dec. 2, 2011) Article 87(1)

[Reference Provisions]

Articles 23 and 37(2) of the Constitution of the Republic of Korea

Article 2 Subparag. 3, 4, and 13 of the Copyright Act (Amended by Act No. 9625, Apr. 22, 2009)

Articles 2 subparag. 5 and 6, 76-2(1), and 83-2(1) of the Copyright Act (Amended by Act No. 14083, Mar. 22, 2016);

Articles 17 and 46 of the Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006)

Article 11 of the Enforcement Decree of the Copyright Act (Amended by Presidential Decree No. 28251, Aug. 22, 2017)

Reference Cases

Constitutional Court Decision 200Hun-Ga11, August 21, 2003, Supreme Court Decision 15-2Sang, 186, 198

Constitutional Court Decision 2013HunBa415 on November 26, 2015, Supreme Court Decision 27-2Ha, 191, 197-198

Parties

1. The representative of ○○ Association, an incorporated association, leap○○○

2. The representative of the insurance association, director Kim ○○; and

3. The representative of the △△ Association, Kim head;

4. The director 000,000, who is an incorporated association;

5. 사단법인 ☓☓협회대표자 이사 우○○

Claimant's agent (LLC)

Attorneys Yellow-ju et al., Counsel for the plaintiff-appellant

Seoul Central District Court (2019Hun-Ga18)

○○ Association of Cheong applicant Incorporated (2019Hun-Ga18)

Representative Director Ma○○

Law Firm LLC et al., Counsel for the plaintiff-appellant in charge and three others

The Seoul Central District Court 2018Gahap539181 Action for damages (2019Hun-Ga18)

Text

1. All of the petitioners' appeals are dismissed.

2. The main sentence of Article 29(2) of the Copyright Act (amended by Act No. 14083, Mar. 22, 2016) shall not violate the Constitution.

Reasons

1. Summary of the case;

(a) 2016Hun-Ma115

(1)청구인들은 모두 문화체육관광부장관으로부터 저작권신탁관리업 허가를 받은 사단법인이다. 청구인 사단법인 ○○협회, 청구인 사단법인 ▽▽협회는 각각 음악저작물에 관한 저작재산권을 관리하고 있고, 청구인 사단법인 □□협회는 실연자의 저작인접권을 관리하고 있다. 청구인 사단법인 △△협회는 음반제작자의 저작인접권 등을 관리하고 있고, 청구인 사단법인 ☓☓협회는 영상저작물에 관한 저작재산권을 관리하고 있다.

(2) The claimant, in principle, asserts that Article 29(2) of the Copyright Act, which provides that, in cases where he/she does not receive any benefit in return for the relevant performance from audience or spectators (hereinafter “to audience, etc.”), a phonogram published for commercial purposes (hereinafter “commercial phonogram”) or a cinematographic work made public for commercial purposes (hereinafter “commercial cinematographic work,” and “commercial cinematographic works, etc.” in combination with commercial cinematographic records, the claimant may reproduce and play for the public, thereby infringing on fundamental rights, and filed the constitutional complaint of this case on December 21, 2016.

(b) 2019Hun-Ga18

(1) On January 1, 2012, the ○○ Association, which is the applicant for proposal (hereinafter referred to as the “applicant for proposal”), concluded a contract on the use of musical works with the content that the applicant permits the use of such musical works by limiting the act of publicly transmitting the musical works managed by the applicant for proposal (hereinafter referred to as the “works in this case”) to the public in the territory of the Republic of Korea with respect to the musical works managed by the applicant for proposal (hereinafter referred to as the “instant works”) on an online-real-time basis, to the public for the purpose of allowing the public to receive at the same time, and then renewed the contract on the use of musical works with the content that the applicant collects from △△△△.

Manum Co., Ltd. (hereinafter “Manumcknum”) is a company engaged in the business of exporting, importing, selling, and selling household goods and daily miscellaneouss, etc., and on February 23, 2017, △△△ entered into a contract with △△ to supply music service with the background music used in the store of Mancknum with the software of △△△△, which was received from Macknum, and which was collected from Macknum. Pursuant to the above contract, the instant work provided by △△△ in the store of Macknum

(2) On June 12, 2018, the applicant for dumnasium

A. A lawsuit was filed without the permission of the applicant for the use of the copyrighted work in this case to seek compensation for damages (Seoul Central District Court 2018 Gohap539181), and the petition was filed for adjudication on the unconstitutionality of Article 29(2) of the Copyright Act during the proceeding of the lawsuit. On May 17, 2019, the filing court accepted the above application and filed for adjudication on the unconstitutionality of the Act.

2. Object of adjudication;

(a) 2016Hun-Ma115

The petitioners seek confirmation of the unconstitutionality of the entire provision of Article 29(2) of the Copyright Act. However, if the provision does not receive any benefit in return for the relevant performance from audience, etc., the petitioners are arguing only whether the infringement of fundamental rights is permitted to reproduce commercial music records, etc. and make them available for public performance. Therefore, the subject of adjudication is limited to the main text of the

On the other hand, the main text of Article 29(2) is applied mutatis mutandis pursuant to Article 87(1) of the Copyright Act with respect to neighboring rights managed by △△ Association, an incorporated claimant, and △△ Association, and the part related thereto is included in the subject of adjudication.

(b) 2019Hun-Ga18

The requesting court has requested a judgment on the constitutionality of all the provisions of Article 29(2) of the Copyright Act, but is limited to the main text of the above provision applicable to the case.

C. Sub-decision

Therefore, the subject of adjudication in the case of 2016HunMa115 is whether the part of Article 29(2) of the Copyright Act (amended by Act No. 14083, Mar. 22, 2016) and Article 87(1) of the Copyright Act (amended by Act No. 11110, Dec. 2, 201) infringe on the basic rights of the petitioners, and the subject of adjudication in the case of 2019HunMa18 is whether the public performance right restriction provision is in violation of the Constitution. The subject of adjudication is as follows, and related provisions are as follows.

【Provisions Subject to Adjudication】

Copyright Act (Amended by Act No. 14083, Mar. 22, 2016)

Article 29 (Public Performance and Broadcasting for Non-Profit Purposes) (2) Where no benefit in return for the relevant public performance is received from audience or spectators, commercial music records or cinematographic works made public for commercial purposes may be reproduced and play to the public: Provided, That the same shall not apply to cases prescribed by Presidential Decree.

Copyright Act (Amended by Act No. 11110, Dec. 2, 2011)

Article 87 (Limitations on Neighboring Rights) (1) Articles 23, 24, 25 (1) through (3), 26 through 32, 33 (2), 34, 35-2, 35-3, 36 and 37 shall apply mutatis mutandis to the use of stage performances, music records or broadcasts which are the object of neighboring rights.

3. Reasons for requesting parties' arguments and for requesting the court to unconstitutionality;

A. The claimant's assertion (2016Hun-Ma115)

(1) Article 23(3) of the Constitution provides for the expropriation, use, or restriction under Article 23(3) of the Constitution, as it is individually and specifically deprived of, or limit to, the property right already established for the public interest, and thus, violates Article 23(3) of the Constitution by failing to provide for reasonable compensation. Even if a provision subject to adjudication is based on the content and limitation of property rights under Article 23(1) and (2) of the Constitution, the provision subject to adjudication causes a harsh burden beyond the bounds of social constraints to be acceptable.

In the case of public performance for profit-making purposes, in principle, property rights can not be a means appropriate for the purpose of fair use of copyrighted works by restricting property rights, except in exceptional cases, a method that restricts property rights, a method that requires no profit-making purpose, a method that provides fair compensation, etc., and a method that violates the principle of proportionality in that infringement of private interests is greater than the public interest that is achieved.

(2) The subject matter of adjudication is in violation of the principle of equality by treating “public performance by performance” and “public performance by reproduction of commercial music records, etc.” differently without reasonable grounds, and treating the reproduction of commercial music records, etc. for profit-making purposes and the reproduction of commercial music records, etc. as the same without reasonable grounds.

(b) Grounds for recommending the unconstitutionality of the requesting court (2019Hun-Ga18);

(1)The limitation of the right of performance, in principle, is in violation of the minimum principle of infringement, by denying the exercise of the right of performance by Presidential Decree, and by restricting the exercise of the right of performance by the holder of author's property rights in the performance for profit-making purposes, and not providing for reasonable compensation to the holder of author's property rights

The need to allow citizens to enjoy cultural life through a public performance which plays in commercial music records, etc. through technological development and changes in the form of consumption of copyrighted works has decreased, and it is possible for small business operators to identify and collect usage fees of commercial music records, etc., but in the case of small business operators, if the public performance right restriction provision is applied, the holder of author's property right has a disadvantage that does not receive any consideration for public performance through reproduction of commercial music records, etc.

under section 24(3).

Therefore, the restriction clause on the right of performance infringes on the property rights of the author of author's property right in violation of the excessive prohibition principle.

(2) The limitation of the right of public performance infringes on the right of equality of the holder of author’s property by equally treating the cases of performing commercial phonograms for commercial purposes through reproduction of commercial phonograms, etc. for commercial purposes without reasonable grounds.

4. Determination

A. Organization of issues

The author's right to performance and the right to compensation of the author's property right holder with respect to commercial phonograms, etc., which are restricted pursuant to Article 23 of the Constitution, are property rights guaranteed pursuant to Article 23 of the Constitution. It is a question as to whether the provision subject to adjudication infringes on the property right of the author's property right and the neighboring right holder (hereinafter "author's property right holder"). Meanwhile, the argument that the provision subject to adjudication differently handles the performance of the performer's performance and the performance through reproduction of commercial phonograms, etc., and violates the principle of equality by equally treating the reproduction of commercial phonograms, etc. and the reproduction of commercial phonograms, etc., which are not so called "for profit-making" as well as the reproduction of commercial phonograms, etc., regardless of the purpose of profit-making. Therefore, as long as the infringement of the property right of the article subject to adjudication is determined, it is not judged separately as to the violation of the principle of equality.

B. Whether the property right is infringed

(1) The legal nature of the restriction on property rights under the provision of the adjudication

In determining whether restrictions on property rights under Article 23(1) and (2) of the Constitution or whether to determine the contents and limitations of property rights based on Article 23(1) and (2) of the Constitution, or whether to determine the acceptance of property rights based on Article 23(3) of the Constitution, the effects of restrictions on property rights, but not individually and systematically, should be understood by comprehensively and systematically identifying the effects of restrictions on property rights (see, e.g., Constitutional Court Decision 200Hun-Ga11, Aug. 21, 2003).

The purpose of the regulation is not to deprive or restrict the property rights of the owner of author's property right, but to form the legal status of the owner of author's property right, etc. with respect to the performance that plays commercial music records, etc. in the future.In the form of regulation, the clause of the subject of adjudication does not have the essence to individually and specifically deprive or limit certain property rights of the owner of author's property right, etc., but rather to define the scope of rights of the owner of author's property right, etc. with respect to performance

Considering this point, the clause to be tried can be seen as a provision that the legislators form and confirm the contents of property rights in the future in a general and abstract manner in accordance with Article 23(1) and (2) of the Constitution.

(2) Criteria for review

The legislators have to consider and coordinate requests for guarantee of private property rights (Article 23(1)1 of the Constitution) and requests arising from the social continuity of property rights (Article 23(2) of the Constitution) in a concrete formulation of the content of property rights so that both legal interests can be harmonized and balanced. Therefore, even in cases where the restriction of property rights is imposed on the grounds of an important public interest, the legislators should comply with the principle of proportionality, and should not deny the right to private use and the right to dispose of the essential substance thereof. In short, if the restriction on property rights is consistent with the principle of proportionality, such restriction is within the scope of the social limitation that the property right is to be shared by the property right holder. On the contrary, if the restriction on property rights is in violation of the principle of proportionality, the restriction on excessive restriction exceeds the limit of the social limitation that the property right holder ought to sign. Accordingly, legislators should have to relax or adjust compensation regulations, such as: Provided, That in cases where there is an exceptional case where the restriction on property rights goes beyond the limit to recover the proportionality of property rights, the legislative intent of 1201 (15).

Therefore, it is a question whether limiting the property rights of the holder of author's property right, etc. with respect to public performances which reproduce commercial phonograms, etc. exceeds the limit of social constraints, and if there is a harsh burden exceeding several limits, it is a matter of whether the compensation provisions for adjustment and mitigation are in line with the principle of proportionality.

(3) Determination

The purpose of adjudication is to enable the public to enjoy cultural benefits through the use of copyrighted works. Under certain conditions, any person can play commercial music records to the public by reproducing commercial music records, etc. is an appropriate means for the achievement of such legislative purpose.

In the case of a performance to which the provisions subject to adjudication apply, the relevant performance shall be held.

Notwithstanding the proviso of Article 29(2) of the Copyright Act, regardless of whether it is for profit-making purposes, the holder of author’s property right, etc. is unable to exercise his/her right to commercial music records, etc.; however, the proviso of Article 29(2) of the same Act provides that cases where the right of performance is not restricted by Presidential Decree shall apply mutatis mutandis to performance, music records, and broadcasts which are the object of neighboring rights pursuant to Article 87(1) of the Copyright Act. Therefore, in cases where such exceptions are applicable under the proviso of Article 29(2) of the Copyright Act and the Enforcement Decree of the Copyright Act, the holder of author’s property right, etc. may still exercise his/her right to commercial music records, etc.: (a) although the foregoing provisions take into account the principle of property rights and exceptional guarantees; (b) in a specific case, taking into account the various circumstances where legislators play a public performance in which commercial music records, etc. are reproduced in Korea; and (c) the legislative body takes into account international standards for the protection of rights of the holder of author’s property right to commercial music records, etc.

On the other hand, even if a public performance that plays commercial music records, etc. by the public is experienced pursuant to the subject clause of adjudication, it is difficult to readily conclude that the desire for commercial music records, etc. is reduced solely for such reason. Rather, there may be cases where the holder of author’s property right, etc. enjoys indirect benefit, such as increasing sales volume, by widely notifying the public of

Considering the above, it is difficult to conclude that the clause subject to adjudication violates the minimum principle of infringement.

Furthermore, it is difficult to view that the clause subject to adjudication has a balance of legal interests because it is difficult to allow the holder of author's property right, etc. to exercise the right to permit a public performance that plays commercial music records, etc. or to prevent any disadvantage from receiving the price for such public performance is greater than the public interest that enables the public to enjoy cultural benefits through a public performance that plays commercial music records, etc.

Therefore, it cannot be said that the clause subject to adjudication infringes on the property right of the author of author's property right against the principle of proportionality.

5. Conclusion

Therefore, all of the petitioners' requests for a trial are dismissed as it is without merit, and the provision on the restriction of the right of public performance is not in violation of the Constitution, and it is so decided as per Disposition. This decision is in accordance with the opinion of all participating Justices, except for the dissenting opinion of Justice Kim Young-young, Justice Cho Jong-sik,

6. Dissenting Opinion by Justice Kim Jong-young, Justice Kim Jong-young, and Justice Lee Jae-soo

We think that the clause is against the excessive prohibition principle that the claimant's property right is infringed, we express their opinions as follows.

(a) International conventions and clauses subject to adjudication;

(1) The rights of copyright holders and neighboring rights holders

Article 11 and Article 14 of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the “Berne Convention”) grants the author the right to disclose performance of musical works, film works, etc. and to communicate such performance to the public. Article 8 of the Berne Convention, which is a special agreement to the Berne Convention, includes the concept of public transmission right until the method of delivering his/her work to the public by wire or wireless means, in accordance with Article 8. The Berne Convention in the Republic of Korea came into force on August 21, 1996 and WCT came into force on June 24, 2004.

Article 12 of the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (hereinafter referred to as the “Rome Convention”) and Article 15 of the “WPT” (hereinafter referred to as the “WPT”) of the World Intellectual Property Organization Performance and Phonograms Treaty” provide for the right to fair single compensation for performers and producers of phonograms, where phonograms published for commercial purposes are used directly or indirectly for the purpose of broadcasting or delivery to the public. In the Republic of Korea, the Rome Convention and WPT came into force on March 18, 2009.

Meanwhile, “Agreement on Trade-Related Intellectual Property Rights” (TRIPs) which is an annex to the Agreement Establishing the WTO, recognizes rights corresponding to Articles 11 and 14 of the Berne Convention through Article 9(1). Korea as a member of the WTO, is a member of the WTO.

Colonel bears the obligation to amend the Berne Convention to comply with the TRIPs, and it does not basically prejudice the rights and obligations under the Berne Convention.

(2) REEITITAL ORUUUD. - The three-stage test

Article 9(2) of the Berne Convention provides for the so-called “three-stage test” test on the condition that only the right to reproduce works may be exempted or restricted, but Article 10, Article 16, and Article 13 of the Berne Convention applies to the exceptions to and restrictions on the right to transmit to the public by copyright holders or neighboring rights holders.

The three-stage test is the exception and limitation of rights: ① clearly defined in domestic legislation; ② the scope of exemption is a special case; ② does not conflict with the ordinary use of copyrighted works; ③ if the legitimate interest of the author does not unreasonably harm the author, only the exception and limitation meeting all the above three conditions are deemed to have complied with the Convention.

(3) The three-stage test and the clause to be tried;

As shown below, Japan also has abolished the controversy that legal provisions similar to those of the subject matter of adjudication should not pass through the third-stage test, and there are many documents suggesting that the subject matter of adjudication will not pass the third-stage test in Korea. Although the third-stage test test cannot be a direct basis for examining the constitutionality of the subject matter of adjudication, it can be used as an important guideline in interpreting the meaning, content and scope of application of the provisions of the Constitution which are highly inferred (see, e.g., Supreme Court Decision 2003Hun-Ba50, Oct. 27, 2005; Dissenting Opinion on the Transition-Ba50, Oct. 27, 2005).

B. Principle of excessive prohibition

(i)the legitimacy of the objectives and the suitability of the means;

The legislative purpose of a clause subject to adjudication, which enables the public to enjoy cultural benefits through the use of copyrighted works, is justifiable. However, the means selected to achieve the legislative purpose should be necessary and effective, and even considering the uncertainty of the prediction of the achievement of the purpose, the means should be valid as being not contrary to data based on facts or general rule of experience. Thus, it is difficult to see that the clause subject to adjudication is an appropriate means to achieve the above legislative purpose on the following grounds.

In comparative law, it is difficult to find similar legislation cases, and it was deleted in 1999 at the end of the controversy over the conformity with Article 14 of the Addenda to the Enforcement Decree of the former Copyright Act of Japan and Article 30(1)8 of the former Copyright Act, where its validity is maintained. Of course, since each country differs from the legal system, culture, and environment, the suitability of the means is not denied solely on the ground that it is a proportional basis. However, the level of public cultural benefits cannot be deemed lower on the ground that each country has no laws similar to the provision subject to the adjudication, and even a country with higher level exists, these circumstances provide the first step for rational deliberation that there is no suitability of the provision subject to the adjudication.

On the other hand, Article 11 of the Enforcement Decree of the Copyright Act, which provides exceptions to the provisions subject to adjudication, has been expanded to reduce the scope of application of the provisions subject to adjudication by expanding the scope of application of Article 11 of the same Act, which provides for exceptions to the provisions subject to adjudication. If Article 11 of the same Act is an appropriate means to achieve the legislative purpose, the State has expanded the scope of application of the provisions subject to adjudication by policy and has reached a conclusion that it is difficult to present. On the other hand, since the provisions subject to adjudication are not appropriate means to achieve the legislative purpose, the expansion of the Enforcement Decree is not inconsistent with the legislative purpose, and thus, it is reasonable to view that the State has been expanding the Enforcement Decree in accordance with other considerations.

On August 22, 2017, Article 11 of the Enforcement Decree of the Copyright Act was amended and excluded from the scope of application of the provision subject to inquiry, such as physical training training, coffee specialty, or other non- alcohol beverage shop business (hereinafter “ beverage shop business”), physiological specialty, or other main store business (hereinafter “the main store business”), and “other large stores” under the Distribution Industry Development Act. Accordingly, the main store business and beverage store business were excluded from the scope of application of the provision subject to inquiry. Accordingly, it is difficult to find that the main store business and beverage store are 10,000 won at the minimum monthly rate of 2,00,000 won, and the physical training hall and 29,800 won at the minimum monthly rate of 5,700 won from the distribution industry, the complex shopping mall under the Distribution Industry Development Act, and other superstores are difficult to find that the commercial music records were transferred to the public’s right holder’s right to public performance after the public performance reduction in the commercial music records.

Therefore, in light of the general rule of experience and data, the clause to be tried is necessary and effective to achieve the legislative purpose.

(2) The minimum of the infringement

A clause to be tried shall be collected only in return for the relevant performance.

Unless considering the purpose of profit-making, place, scale, etc. of performance, the rights of the author of author's property right, etc. are uniformly restricted without considering the existence of profit-making purpose, and the proviso to Article 29 (2) of the Copyright Act is not limited

The Majority Opinion does not apply to a place of business pursuant to Article 11 of the Enforcement Decree of the Copyright Act, which is delegated by the proviso to Article 29(2) of the Copyright Act, and, if commercial music records, etc. are known to the public through a public performance, the said commercial music records, etc. can enjoy indirect profits, and thus, the said provision does not violate the minimum principle of infringement. However, the unconstitutionality of Article 22(2) of the Constitution, which is a subordinate norm, does not mean that the said provision is unconstitutional. This contradicts the language and text of Article 22(2) of the Constitution, which provides for the protection of author’s right by law.

In addition, the expectation that the sales volume of commercial music records, etc. will increase by notifying the public of the commercial music records, etc. through public performance is not only indefinite but also very large.In particular, unlike musical works, unlike musical works, it is difficult to expect indirect profits by extinguishing the availability of commercial music works in the future if commercial music works are performed in accordance with the provisions of the subject of the adjudication, because the demand for commercial music works is met by large viewing. Therefore, it cannot be a proper argument that indirect profits by the subject of the adjudication does not violate the minimum principle of infringement.

Therefore, even if the clause subject to adjudication satisfies the legitimacy of legislative purpose and the suitability of the means, the clause subject to adjudication does not meet the minimum standard of infringement because it restricts the property rights of the owner of author's property right, beyond the minimum necessary level.

(3) Balance of legal interests

It is expected that the interests of the holder of author’s property right, etc. are also included in the secondary profits generated by performing commercial music records for commercial purposes as well as the sales profits of commercial music records. The content expected by the holder of author’s property right, etc. to be belonging to his/her legitimate interests, which is very high to protect as a right, and more contribute to the improvement and development of culture and related industries when protecting them as a right. However, as seen earlier, the subject clause permits the transfer of profits which can be reasonably expected from commercial music records, etc. to the non-holder of the property right, etc. for profit-making purposes, and thus, it is highly infringing upon. On the contrary, the subject clause of adjudication does not meet the balance of legal interests.

(4) The theory of lawsuit

Therefore, the clause of adjudication infringes on the claimant's property right against the excessive prohibition principle.

Judges

Lee Jong-tae, Lee Jong-soo, Lee Jong-jin, Lee Jong-jin, Kim Jong-young, Lee Jong-tae

Site of separate sheet

[Attachment] Relevant Provisions

Copyright Act (amended by Act No. 9625 of April 22, 2009)

The definitions of terms used in this Act shall be as follows:

(iii)“Public performance” means opening to the public works, performances, music records or broadcasts by acting, musical playing, singing, singing, reciting, screening, reproducing or other means, including transmission (other transmission) made in the connected premises in the possession of the same person;

4. The term "stage performer" means a person who gives a stage performance by expressing works through acting, dancing, musical playing, singing, singing, reciting, or other artistic methods or by expressing things other than works in a similar way, including a person who directs, directs, or supervises a stage performance;

13."cinematographic work" means a creative production in which a series of images (whether accompanied by sound) are recorded, and which can be seen or seen and heard through a reproduction by mechanical or electronic apparatus;

Copyright Act (Amended by Act No. 14083, Mar. 22, 2016)

The definitions of terms used in this Act shall be as follows:

5.The term "music records" means sound (referring to voice and sound; hereinafter the same shall apply) fixed in a tangible object (including digitalizing sound), except that the sound is fixed together with images;

6."Phonogram producer" means a person who plans and takes charge of the first production of phonograms as a whole;

Article 76-2 (Public Performance by Commercial Phonograms)

(1) A person who performs a public performance by using commercial music records in which the performance is recorded shall pay reasonable compensation to the performer: Provided, That the same shall not apply when the performer is a foreigner and the foreign country does not recognize compensation pursuant to the provisions of this paragraph to the performer who is a national of the Republic of Korea.

(1) A person who performs a public performance by using commercial music records shall pay a reasonable compensation to the music record producer concerned: Provided, That the same shall not apply to cases where the music record producer is a foreigner and the foreign country does not recognize the compensation pursuant to the provisions of this paragraph to the music record producer who is a national of the Republic of Korea.

Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006)

Article 17 (Right of Public Performance) The author shall have the right to perform his/her work publicly.

Article 46 (Authorization to Use Works) (1) The holder of author's property right may allow other persons to exploit the works.

(2) The person who obtained such authorization under paragraph (1) shall be entitled to exploit the work in such a manner and within the limit of such conditions so authorized.

(3) The right of exploitation as authorized under paragraph (1) may not be transferred by assignment to the third party without the consent of the holder of author's property right.

Enforcement Decree of the Copyright Act (Amended by Presidential Decree No. 28251, Aug. 22, 2017)

"Cases prescribed by Presidential Decree" in the proviso to Article 11 (Exception to Public Performance through Commercial Phonograms, etc.) of the Act means any of the following public performances:

1. The following public performances conducted at places of business under subparagraph 8 of Article 21 of the Enforcement Decree of the Food Sanitation Act:

(a) A public performance given at a place of business that runs the coffee specialty or other non- alcohol beverage business under the standard classification of industries publicly notified by the Commissioner of the Statistics Korea pursuant to Article 22 of the Statistics Act (hereinafter referred to as the "Korea Standard Industrial Classification") among resting restaurants pursuant to subparagraph 8 (a) of Article 21 of the Enforcement Decree of the Food Sanitation

(b) A public performance given at a place of business that operates a beer store or other principal store under the Korean Standard Industrial Classification among general restaurants under subparagraph 8 (b) of Article 21 of the Enforcement Decree of the Food Sanitation Act.

(c) A public performance given at entertainment taverns under subparagraph 8 (c) of Article 21 of the Enforcement Decree of the Food Sanitation Act and entertainment taverns under subparagraph 8 (d);

(d) A public performance given at a place of business not falling under any of items (a) through (c), whose part of the main contents of business is to allow the appreciation of music or cinematographic works, equipped with the equipment identifying music or cinematographic works;

2. A public performance given at any horse under the Korean Racing Association Act and any bicycle race track and motorboat racing area under the Bicycle and Motorboat Racing Act;

3. A public performance given at any of the following facilities under the Installation and Utilization of Sports Facilities Act:

(a) Specialized sports facilities prescribed by Ordinance of the Ministry of Culture, Sports and Tourism among specialized sports facilities under Article 5 of the Installation and Utilization of Sports Facilities Act;

(b) Golf courses, dance institutes, dance halls, skiing grounds, ebbbbrics, or physical training centers in attached Table 1 of the Enforcement Decree of the Installation and Utilization of Sports Facilities Act;

4. A public performance given at any passenger plane operated by the air transport business under the Aviation Business Act, any ship for the marine passenger transport business under the Marine Transportation Act and any passenger train under the Railroad Enterprise Act;

5. A public performance given at any hotel, resort condominium, casino, or amusement facility under the Tourism Promotion Act;

6. A public performance given in a superstore (excluding traditional markets under subparagraph 1 of Article 2 of the Special Act on the Development of Traditional Markets and Shopping Districts) pursuant to attached Table of the Distribution Industry Development Act;

7. A public performance of cinematographic works made public for commercial purposes at a lodging business under Article 2 (1) 2 of the Public Health Control Act and at a public bath under subparagraph 3 (b) of the same paragraph with the device for appreciating cinematographic works;

8. A public performance in a form of playback of cinematographic works made public for commercial purposes for which six months have not passed from the date of publication in any of the following facilities, which are equipped with an installation for the appreciation of cinematographic works:

(a) Buildings and annexed facilities of the State and local governments (including affiliated institutions);

(b) Public performance places under the Public Performance Act;

(c) Museums and art galleries under the Museum and Art Gallery Support Act;

(d) Libraries under the Libraries Act;

(e) Local cultural institutes under the Promotion of Local Cultural Institutes Act;

(f) Social welfare centers under the Social Welfare Services Act;

(g) The Women's Manpower Development Center and the Women's History Museum established under Articles 47 and 50 of the Framework Act on Gender Equality;

(h) Juvenile training establishments under subparagraph 1 (a) of Article 10 of the Juvenile Activity Promotion Act;

(i) Si/Gun/Gu community centers among public facilities under Article 144 of the Local Autonomy Act;

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