[1] Details of an intentional act in violation of author's property right under Article 97-5 of the former Copyright Act

[2] The case holding that in a case where another person's photographic photo produced on the basis of a computer screen is reproduced in the membership of the provider company, and then transmitted it to the portal site displayer, the act of infringing author's property rights is not included in the "public performance or broadcast" under the main sentence of Article 26 (1) of the former Copyright Act

[1] Article 97-5 (see current Article 136 (1)) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [2] Article 2 subparagraphs 3, 8, and 9-2 (see current Article 10), and Article 26 (1) (see current Article 29 (1)) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006)

Defendant

Defendant

Ulsan District Court Decision 2006No330 decided June 16, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the intentional infringement of author's property right, recognition of illegality, and interpretation of Article 26 (1) of the former Copyright Act

A. In the case of an infringement of author’s property right as provided in Article 97-5 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006; hereinafter the same), the intent is sufficient to recognize the facts that infringe on author’s property right. The recognition is not only final but also conclusive but also so-called willful negligence (see Supreme Court Decision 2005Do6403, Dec. 23, 2005, etc.).

Examining the above legal principles and the evidence of the first instance court maintained by the court below in light of the records, the defendant, at the time of the original adjudication produced by the non-indicted, copied by transmission from the screener company on the basis of a computer screen, and transmitted it to NAV (www.naver.com), the portal site, even though he was aware of the copyright holder of the above photograph, which is a photographic work under the Copyright Act, was aware of the fact that at least the copyright holder of the above photograph was the copyright holder, and there was an indication that the above company is not responsible for the copyright of the above photographic image. Thus, it is reasonable to view that the defendant had a dolus perception about the fact of infringing the author's property right at least, and even if the defendant had received the above stormic photo as a member from the portal site, and thus, it cannot be said that there was a mistake that the defendant did not mislead that the above photographic photograph was a copyright holder of the above photographic photographic work, and that the defendant sent it to the portal site.

B. The main text of Article 26(1) of the former Copyright Act provides that “a work already made public may be performed or broadcasted if it is not for profit-making purposes or without receiving any benefit in return from audience, spectators, or third parties.” However, the term “public performance” refers to the disclosure of copyrighted works to the general public by acting, playing, singing, singing, singing, screening or other means, and the reproduction of reproductions to the public, and the disclosure of them to the general public by means of singing, singing, singing, singing, singing, screening or other means; the term “broadcasting” includes transmission made within the connected place in the possession of the same person; the term “broadcasting” refers to the transmission of voice, sound, or images, etc. by means of radio or wire communication for the purpose of receiving them at the same time and place individually selected by the general public; and the term “transmission” refers to the transmission of copyrighted works by wire or wireless means, or the provision of “public performance” and “public performance” in the main sentence of Article 26(1) of the former Copyright Act includes the concept of “public performance” and broadcasting.

C. The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the intentional act or illegality of infringement of author's property right, and the interpretation of Article 26 (1) of the former Copyright Act.

2. On the issue of unfair sentencing

According to the provisions of Article 383 subparagraph 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where the defendant has been sentenced to a minor fine, the grounds that the amount of the punishment is unreasonable cannot

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)