In cases of using a copyrighted work without permission of the copyright holder, whether the copyright holder may seek a return of the objectively reasonable amount that the user would have paid as the price for using the copyrighted work if the user had obtained permission to exploit the copyrighted work (affirmative), and the method of calculating

Unless there exist any special circumstances, a person who exploits a work without permission of the copyright holder shall be deemed to have obtained a benefit of the amount equivalent to the royalty without any legal ground and thereby caused damage to the copyright holder. Therefore, the copyright holder may seek a return of the amount objectively corresponding to the cost that the user would have paid if he/she had obtained permission to exploit the work.

In calculating the amount of unjust enrichment, where the copyright holder first enters into a contract for the use of a work in a similar form as the one at issue and has received the royalty, barring any special circumstance, the royalty under the contract shall be calculated based on the royalty, barring any special circumstance.

However, in a case where the content of the license agreement on the work in question is not similar to the exploitation at issue, or it is unreasonable to take the royalty under the license agreement as the basis for calculating the amount of unjust enrichment as it is, for instance, that the royalty has been set at an exceptional level even if the content of the license agreement on the work in question is set at issue, the amount of unjust enrichment ought to be calculated at an objective and reasonable amount, taking into account all the circumstances revealed in the oral proceedings, such as the content of the license agreement, relationship between the copyright holder and the user, the purpose and duration of exploitation, the kind and scarcity of the work, the time of production and the cost of production, if there is a license agreement on the work

Article 741 of the Civil Act, Article 46 of the Copyright Act

T.B.P Co., Ltd. (Law Firm Western, Attorneys Jeon Soo-soo et al., Counsel for the plaintiff-appellant)

ELB Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Park Sang-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2013Na65545 decided October 14, 2014

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined.

1. As to the defendant's grounds of appeal Nos. 1 and 2

The lower court determined that (1) it is reasonable to interpret that the Plaintiff acquired the author’s property right, such as performance rights, reproduction rights, and distribution rights, the period and use of which are limited, in light of the contract clauses established with the Korea Trade-Investment Promotion Agency and the High Military, which are copyright holders of video works Nos. 1 and 2; and (2) it cannot be deemed that the Plaintiff implicitly consented to the Defendant’s gratuitous use of video works regardless of whether the Plaintiff entered into a contract for use of

Examining the reasoning of the lower judgment in light of the records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the distinction between a copyright transfer agreement and a license agreement, or by omitting judgment as to the implied acceptance of a work

2. Defendant’s ground of appeal No. 3 and Plaintiff’s ground of appeal

A. Unless there exist any special circumstances, a person who exploits a work without permission of the copyright holder shall be deemed to have obtained a benefit of the amount equivalent to the royalty without any legal ground, and thereby caused damage to the copyright holder. Therefore, the copyright holder may seek a return of the amount objectively equivalent to the royalty that the user would have paid if he/she had obtained permission to exploit the work.

In calculating the amount of unjust enrichment, where the copyright holder first enters into a contract for the use of a work in a similar form as the one at issue and has received the royalty, barring any special circumstance, the royalty under the said contract shall be calculated based on the royalty, barring any special circumstance.

However, in a case where there exist circumstances in which it is unreasonable to consider the royalty under the license agreement as the basis for calculating the amount of unjust enrichment, on the grounds that the content of the license agreement on the relevant work is not similar to the exploitation at issue, or even if the license agreement on the relevant work has been set at an ex officio higher level, the unjust enrichment amount shall be calculated at an objective and reasonable amount, taking into account all the circumstances revealed in the oral proceedings, such as the content of the license agreement, the relationship between the copyright holder and the user, the purpose and duration of exploitation, the kind and scarcity of the work, the time and expenses of production, etc., if any, the license agreement on the work of a similar nature, as well as the royalty

B. The lower court determined as follows regarding the scope of unjust enrichment to be returned to the Plaintiff by the Defendant on the ground that the Defendant used and displayed negotiations for the use of 3D multi-level video works for the purpose of promoting the Plaintiff and 3D TV.

(1) The Nonparty of the first instance trial appraiser calculated the usage fee in accordance with the method of computing the price of Stockholm Flock Flock (Sock Flock. Before the production of other contents, having the value to be used again as a database, and re-produced and lent them) by means of uniformly dividing the first and second video works into a certain quantity, by a certain quantity, and multiplying the usage fee per minute. However, the video works of the first and second instances cannot be deemed to consist of the Stockholm Flock Clocks, which are well set up on the face, and thus, it is difficult to comply with such appraisal result.

(2) With respect to the Defendant’s display of Cinematographic Works Nos. 1 and 2 at the Defendant’s agency for about nine months on 3D TV for the purpose of facilitating the sale of 3D TV, if the Defendant calculated the usage fee per minute on the basis of the Defendant’s contract case, which is the most similar case in the place and purpose of use (for store promotion), period of use (one year), and period of use, and converted the usage fee into nine months on the basis of the period actually used by the Defendant, the usage fee shall be KRW 341,102,790. However, the Defendant’s contract case also differs in terms of objective values, such as the type, length, timing of use, and scarcity, and the Plaintiff’s demand during the negotiations with the Plaintiff, it is reasonable to regard the use fee as KRW 600,000,000, considering the following factors.

(3) As to the Defendant’s display of Cinematographic Works Nos. 1 and 2 in virtual show, etc. for 3D TV for 7 days, according to the Plaintiff’s very similar contract case, the royalty is KRW 12,600,000.

(4) With respect to the Defendant’s display of Cinematographic Works Nos. 1 and 2 at a publicity room located at the entrance of 34 Korean film theaters for a period of two months through 3DTVs, the above case may be applied under (2) above, such as that the Defendant’s contract case and time coincide almost with each other, and accordingly, the royalty shall be KRW 75,80,620.

(5) As to the Defendant’s act of providing 92 copies of the Blu disc 1 and 2 to the consumers who purchased 3D TV, it is reasonable to regard the Defendant’s contract as 10,000 won per disc in light of all the circumstances, including the content, quantity, value, timing of distribution, and quantity of the video works 1 and 2 as 1,00 won.

(6) Although the Plaintiff and the Defendant agreed to enter into a contract for the use of video works Nos. 1 and 2 between the Plaintiff and the Defendant, there was no dispute as to whether the scope of the right to use the video works was “for the purpose of promotion and display of multi-level TV advertising in the Defendant’s agency and store,” and thus, it is difficult to view that the Defendant’s reproduction of the video works within the scope of the right to use, and provision of them to the Defendant’s store, etc. to the extent of the right to use the video works was ordinarily incidental to the Plaintiff’s agency’s demonstration,

(7) The Plaintiff’s case concerning Cinematographic Works Nos. 1 and 2, for which the Plaintiff claimed that it should be based on the calculation of unjust enrichment, is difficult to apply it to the Plaintiff’s act of using it for a long period of time on multiple agencies as the case where the Plaintiff entered into a contract at one place for a short period of three to five days at a show of show of show. It is also inappropriate to calculate it by the number of TV sales, which are the contents of negotiation concluded between the

C. Examining the reasoning of the judgment below in light of the above legal principles and records, we affirm the judgment of the court below as just, and there is no error in the misapprehension of legal principles as to the calculation of unjust enrichment due to the use of copyrighted works without permission, as otherwise alleged in

3. Conclusion

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

Justices Jo Hee-de (Presiding Justice)