[1] Whether a person who obtained permission for reproduction of a computer program from the holder of author's property right to use the program installed in an auxiliary memory, such as a computer hard disc drive (HD), constitutes the use of copyrighted works pursuant to Article 46(2) of the Copyright Act (affirmative), and whether the user who obtained permission for reproduction violates the method or condition of use of a program under the agreement with the holder of author's property right to use the program (negative)

[2] Whether it constitutes “temporary reproduction” as referred to in Article 2 subparag. 22 of the Copyright Act when a user loads and uses a computer program installed in auxiliary memory devices such as a computer hard disc drive (HDD), etc. in the course of implementing the computer program (affirmative) / The purpose of Article 2 subparag. 22 of the Copyright Act as temporary reproduction, while including temporary reproduction in the concept of reproduction in Article 2 subparag. 22 of the Copyright Act, is to include temporary reproduction in the concept of reproduction, and the scope of temporary reproduction, the exemption of which is recognized by the aforementioned provision, and the scope of temporary reproduction.

[1] Article 16 of the Copyright Act stipulates the right to reproduce a work as one of the individual rights that constitute author’s property rights. Article 2 Subparag. 22 of the same Act provides that “duplicating” refers to fixing a work temporarily or permanently on a tangible object or remaking a work again by means of printing, photographing, copying, recording, video recording, or any other means. The act of installing a computer program in an auxiliary memory device, such as HD (HD) constitutes permanent reproduction under Article 2 Subparag. 22 of the Copyright Act.

Meanwhile, Article 46(2) of the Copyright Act provides that a person who obtains permission for the exploitation of a work from an author’s property right holder may exploit the work within the scope of such permitted method and conditions. The permission for the exploitation of the work refers to the permission for the use of an individual right that constitutes an author’s property right, such as the right to reproduce the work.

Therefore, the use of a computer program installed in auxiliary memory, such as HD, by a person who obtained permission for reproduction from an owner of author’s property rights, constitutes the use of copyrighted works within the scope of the method and conditions so permitted by the owner of author’s property rights. Even if the user who obtained permission for reproduction violated the method and conditions of use of the program as stipulated in the agreement with the owner of author’s property rights, it cannot be deemed that the said user infringed the right of reproduction of the owner of author’s property rights, apart from the liability for nonperformance due to the breach of the said agreement.

[2] In the process of implementing a computer program installed in an auxiliary memory device such as a computer hard disc drive drive (HD) or searching, inspecting, and transmitting a digital work via the Internet, the central processing unit (CPU) loads a computer program on luminous, which is a key memory device, to improve the processing speed of the computer program. The reproduction of a computer program occurring in this process can be deemed temporary reproduction in that the contents of the reproduced program are entirely erased if all are deleted.

Meanwhile, while Article 2 Subparag. 22 of the Copyright Act includes “temporary fixing or remaking works in tangible objects” in the concept of reproduction, Article 35-2 provides for exemption from temporary reproduction by stipulating that “where a person uses works, etc. in a computer, he/she may temporarily reproduce such works, etc. in that computer to the extent deemed necessary for smooth and efficient information processing: Provided, That this shall not apply where the use of such works, etc. infringes on copyright.” The purport of the provision is to faithfully protect copyright holders in line with a new environment for the use of copyrighted works, thereby ensuring the appropriate balance between the protection of copyright and the smooth use of copyrighted works, etc. by preventing excessive restriction on the use and distribution of copyrighted works, etc. on computers. In light of the legislative purport, “the extent deemed necessary for smooth and efficient information processing” as mentioned above includes cases where temporary reproduction is inevitably accompanied by the use of copyrighted works, etc., but temporary reproduction itself should exclude cases where it has independent economic value.

[1] Article 2 subparag. 22, Articles 16 and 46(2) of the Copyright Act / [2] Article 2 subparag. 22, Articles 16, 35-2, and 46(2) of the Copyright Act

See Attached List of Plaintiffs (Law Firm Min-Post, Attorneys Kim Gyeong-hwan et al., Counsel for the plaintiff-appellant)

A. SDR Co., Ltd. (Law Firm Dr., Attorneys Park Jong-mun et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2014Na19631, 19648, 19655, 19662 decided November 20, 2014

All appeals are dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

1. Judgment on the first ground for appeal

(1) Article 16 of the Copyright Act stipulates the right to reproduce a work as one of the individual rights that constitute author’s property rights. Article 2 Subparag. 22 of the same Act provides that “duplicating” refers to fixing a work temporarily or permanently on a tangible object or remaking a work again by means of printing, photographing, copying, recording, video recording, or other means. Installation of a computer program in auxiliary memory, such as HD (HD) constitutes permanent reproduction under Article 2 Subparag. 22 of the Copyright Act.

Meanwhile, Article 46(2) of the Copyright Act provides that a person who obtains permission for the exploitation of a work from an author’s property right holder may exploit the work within the scope of such permitted method and conditions. The permission for the exploitation of the work refers to the permission for the use of an individual right that constitutes an author’s property right, such as the right to reproduce the work.

Therefore, the use of a computer program installed in auxiliary memory, such as HD, by a person who obtained permission from an author holding economic rights to reproduce a computer program by installing it, constitutes the use of a copyrighted work by the person who obtained permission for the use of the copyrighted work, within the extent of the method and conditions so permitted. Even if the user who obtained such permission violated the method and conditions of use of the program as stipulated in the agreement with the author holding economic rights, the said user cannot be deemed to have infringed the right of reproduction of the author holding economic rights, apart from the liability for nonperformance due to the breach of the said agreement.

(2) Review of the reasoning of the lower judgment and the evidence duly admitted and examined by the lower court reveals the following facts.

① The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) is the author’s property right of Open Capture, which is a computer program that provides a computer user with the recording function of the screen. Open Capture was operated from 6.7 to 7.0 on February 5, 2012. The Open Capture was provided free of charge prior to 7.0 to only use for non-commercial or personal purposes; and in other cases, the Open Capture was changed from 7.0 to 7.5 on August 23, 2012 to 8.0 on February 15, 2013 to 8.0 on June 27, 2013, and from 7.0 to 7.8 on January 5, 2014 to 70 on a fee for use only when the business license was purchased.

② If the Open Capture 6.7 Open Capture is installed, a computer program is installed on the user’s computer HD’s HD’s HD’s HD, regardless of the leakage of the confirmer. The Paid Open Capture of Open Capture automatically downloads the user’s computer HD’s HD’s HD’s temporary route, regardless of whether the confirmer takes place. After which the confirmer’s user’s computer, a computer program is installed on the HD’s HD’s HD.

③ After the use license agreement (hereinafter “the instant terms and conditions”) was made, the program sets out to ask whether the user consents to the license agreement, including the license agreement. The contents of the program transfer are “to use only for the purpose of non-business, non-commercial, and individual use.” After the program, the program sets out that the program can be used free of charge if the program is used for non-business use, and if the program is used for non-business use, the program sets out that the user can use the program for non-business use, and if the program sets out the confirmer, then the program will be able to use the program for non-business use in the computer.

④ The employees of the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) agreed to and made use of the Paid License of Open Capture of Open Capture as seen above, and used the Paid License of Open Capture for business purposes.

(3) Examining the above facts in light of the legal principles as seen earlier, as long as the program was completed by the Paid User of Open Capture of Open Capture, by itself, through the Defendant’s program, and such reproduction was conducted with the Defendant’s permission, it cannot be deemed that the Defendant’s employees infringed the Defendant’s right of reproduction regarding the Paid User of Open Capture of Open Capture, apart from the fact that the Plaintiffs’ employees are not liable for nonperformance on the use of the program in violation of the method and conditions of use under the terms and conditions of the instant agreement.

Although the reasoning of the lower judgment is somewhat inappropriate, the conclusion that rejected this part of the Defendant’s assertion is justifiable. In so doing, the lower court did not err by misapprehending the legal doctrine on the infringement of the right of reproduction and Article 46(2) of the Copyright

2. Judgment on the second ground for appeal

(1) In the process of implementing a computer program installed in an auxiliary memory device such as a computer hard disc drive drive (HD) or searching, inspecting, and transmitting digital copyrighted works via the Internet, the central processing unit (CPU) loads a computer program on luminous, which is a key memory device, to improve the processing speed of the computer program. The reproduction of a computer program occurring in this process can be deemed temporary reproduction in that the contents of the reproduced program are entirely erased if all are deleted.

(2) Meanwhile, while Article 2 Subparag. 22 of the Copyright Act includes “temporary fixing or remaking works in tangible objects” in the concept of reproduction, Article 35-2 of the same Act provides that “where a work is used in a computer, the use of such work may be temporarily reproduced on that computer to the extent deemed necessary for smooth and efficient information processing: Provided, That this shall not apply where the use of such work, etc. infringes on copyright.” The purpose of the provision is to faithfully protect the rights of copyright holders in line with the environment for the use of new copyrighted works, thereby ensuring the adequate balance in the protection of copyright and the smooth use of copyrighted works by preventing excessive restriction on the use and distribution of copyrighted works in computer.” In light of the legislative purport, “the extent deemed necessary for smooth and efficient information processing” as mentioned in this context includes cases where temporary reproduction is inevitably done to enhance stability and efficiency, as well as to the use of copyrighted works. However, temporary reproduction itself should be excluded from cases of having independent economic value.

(3) Examining the record in accordance with the aforementioned legal doctrine, the Plaintiffs’ employees’ temporary reproduction is carried out by temporarily storing a part of the computer program in a certain space of RoAM, which is a key storage device for the user’s computer, when implementing the paid server of Open Capture from the computer. However, this is a part of the normal computer program’s operation process, and it is difficult to deem that it inevitably entails the use of the computer program, which is a copyrighted work, to have

As seen earlier, so long as the paid server of Open Capture was reproduced in the computer hard disc drive (HD) of the Plaintiffs’ employees, there is no reason that the proviso of Article 35-2 of the Copyright Act provides as an exception to the exemption from liability for infringement of temporary reproduction rights does not exist. Even if the terms and conditions of the instant case were to allow temporary reproduction only for non-business purposes, it cannot be deemed that temporary reproduction generated in the course of implementing the paid server of Open Capture of Open Capture is a copyright infringement, regardless of whether temporary reproduction generated in the course of the implementation of the reproduced Open Capture is the nonperformance of obligation due to the contractual breach.

Therefore, the Defendant’s temporary reproduction generated in the course of implementing the paid server of Open Capture may be deemed to be within “the extent deemed necessary for smooth and efficient information processing when using copyrighted works in a computer” as provided by Article 35-2 of the Copyright Act. Therefore, the Plaintiffs’ employees cannot be deemed to have infringed the Defendant’s right of temporary reproduction of the paid server of Open Capture.

(4) Therefore, the lower court is justifiable to have determined that temporary reproduction, which takes place following the implementation of the Paid server of Open Capture, did not infringe the Defendant’s copyright. In so doing, the lower court did not err by misapprehending the legal doctrine on the infringement of the right of reproduction and Article 35-2

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Plaintiffs: Omitted

Justices Cho Jae-chul (Presiding Justice)