[1] The purport of excluding the news report which merely delivers facts from the scope of protection under the Copyright Act

[2] The subject of copyright protection and the standard for determining actual similarity between two copyrighted works

[3] The meaning of "amount equivalent to the amount ordinarily obtained by exercising the right" and the method of calculating "amount equivalent to the amount ordinarily obtained by exercising the right" under Article 93 (2) of the former Copyright Act

[4] In a case where Party A, a news agency, infringed Party B’s author’s property right by moving an article of Party B, a news agency, without permission, the case holding that the amount of damages under Article 93(2) of the former Copyright Act cannot be calculated on the basis of this, on the ground that, in light of the fact that it is difficult to readily conclude that Party A’s basic nature is close to the newspaper, although Party A provided news to the general public via a website, the former materials received under the transition contract with various media agencies cannot be deemed as an amount which can be ordinarily received between Party B and Party B

[5] Whether it is permissible to file a claim by combining several claims to be claimed as simple or conjunctive claims (negative), and in a case where the appellate court receives an application for change of the cause of the claim to be added by either selective or conjunctively combining several claims to be claimed as simple or conjunctive claims, whether the form of the merger is changed to legitimate selective or conjunctive relationships (negative)

[6] The method of indicating the order in the case of rejection of a claim newly added in the appellate court as a result of partial acceptance of the existing claim, and whether the appeal to the part of the claim with omission of the judgment is legitimate (negative)

[7] Meaning of “honorary” under Article 95 of the former Copyright Act and whether such “honorary appraisal” includes the author’s “honorary appraisal” (negative)

[1] Article 7 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) / [2] Article 2 subparagraph 1 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) (see Article 2 subparagraph 1 of the current Copyright Act) and Article 10 (see Article 10 of the current Copyright Act) / [3] Article 93 (2) of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) (see Article 125 (2) of the current Copyright Act) / [4] Article 93 (2) (wholly amended by Act No. 8101 of Dec. 28, 2006) of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) / [5] Article 253, Article 2108 of the Civil Procedure Act

[1] Supreme Court Decision 2004Do5350 decided Sep. 14, 2006 (Gong2006Ha, 1766) / [2] Supreme Court Order 97Ma30 decided Sep. 29, 1997 (Gong1997Ha, 3374) Supreme Court Decision 98Da46259 decided Nov. 26, 199 (Gong200Sang, 28) Supreme Court Decision 9Da10813 decided Oct. 24, 200 (Gong200Ha, 2381) / [3] Supreme Court Decision 9Da69631 decided Nov. 30, 201 (Gong2002; 208Da53649 decided Apr. 26, 2005) / [208Da520979 decided Apr. 26, 2004] Supreme Court Decision 2005Da520975 decided Apr. 25, 20094

Plaintiff (Law Firm, Kim & Lee, Attorneys Jeong Young-young et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm continental Aju, Attorneys Su Jae-in et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na2355 Delivered on November 29, 2006

The part concerning the claim for damages arising from infringement of author's property right among the judgment below is reversed, and that part of the case is remanded to the Seoul High Court. The part concerning the claim for damages arising from infringement of author's property right among the plaintiff's appeal is dismissed. All remaining appeals by

Each ground of appeal by the plaintiff and the defendant is examined together in the logical order.

1. On the third ground for appeal by the plaintiff

Article 7 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006; hereinafter the same) provides that "any of the following shall not be protected under this Act" and exclude certain creative works from subject to protection under the Copyright Act. It is a creative expression that is the original object of protection under the Copyright Act, and it is a form of expression that is an externally expressed creative expression, not an idea or fact itself that is the content of such expression, but an expression of expression is usually used to accurately and promptly deliver various information, and it is likely that creative elements might be involved in the use of a simple and creative expression, without reaching the level of creative and open expression, and its degree of "the current report that is merely a mere delivery of fact" is excluded from protection under the Copyright Act (see, e.g., Supreme Court Decision 2004Do5350, Sept. 14, 2006):

In light of the above legal principles and the records, the remaining articles of the Plaintiff’s articles of this case, other than the copyright recognition articles of this case, among the Plaintiff’s articles of this case as indicated in the judgment of the court below, include various facts such as sports news, accidents, investigation, trial status, and the contents of judgment, and information are merely delivered to the extent that they are delivered as they are in the form of the emotional and simple form of the press media. Thus, it cannot be said that they are copyrighted works protected

The judgment below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the scope of works subject to protection under the Copyright Act, as otherwise alleged in the ground of appeal.

2. As to the Defendant’s first ground of appeal

The subject of copyright protection is a creative expression form that specifically expresses ideas or emotions obtained by people's mental efforts with respect to learning and arts through speech, text, sound, color, etc. The contents expressed, that is, ideas or emotions such as ideas or theories, etc., are not subject to copyright protection in principle, even if they have originality and originality. Therefore, in order to determine whether there is a substantial similarity between two copyrighted works in order to determine whether the copyright has been infringed, only those constituting creative expression forms should be compared (see Supreme Court Decision 9Da10813, Oct. 24, 200, etc.).

In light of the above legal principles and the records, even if the infringement articles of this case in the judgment of the court below are somewhat modified, increased or decreased, or modified in the order of arrangement of some sentences and their specific expressions, etc., the core parts of the plaintiff's articles corresponding thereto are transferred as they are, and since the creative characteristics of the plaintiff's articles are reduced in the composition and discussion of the whole articles, there is a substantial similarity between the two articles.

The judgment below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the judgment of substantial similarity of works as otherwise alleged in the ground of appeal by the

3. The plaintiff's ground of appeal No. 1 and the defendant's ground of appeal No. 2

A. According to the reasoning of the lower judgment, the lower court: (a) based on the evidence employed by the Plaintiff, entered into a re-contract with the media organizations including domestic newspaper companies to receive a fixed amount of 10 million won in return for news gathering and providing articles prepared by the Plaintiff; (b) the entire material is calculated based on the number of copies and influence of the media organizations supplied with articles, and is irrelevant to the number of articles actually reported; (c) the entire material that the Plaintiff received under a re-contract with each media organization was 20 million won per month for radio and cable broadcasting stations; (d) the monthly amount of KRW 30 million per month for central news stations; (e) the amount of KRW 57 million per month for central news media stations; and (e) the amount of damages incurred by the Plaintiff during the period of KRW 10 million per month for 10 million per month for local newspapers; and (e) the amount of damages incurred by the Plaintiff during the period of KRW 30,000,000 per month during which the entire news media was infringed.

B. However, we cannot accept the above determination by the court below for the following reasons.

In calculating the amount of damages pursuant to Article 93(2) of the former Copyright Act, “the amount equivalent to the amount which can be ordinarily received in the exercise of the right” refers to the amount objectively equivalent to the amount which the infringer would have paid if he had obtained permission to exploit the work, and in case where the copyright holder entered into a contract to exploit the work in a form similar to the infringement and received user fees, barring any special circumstance, it is reasonable to regard the amount of damages under the service contract as the amount which the copyright holder would normally be entitled to receive in the exercise of the right, and to calculate the amount of damages based on the amount of money which the copyright holder would normally receive in the exercise of the right (see Supreme Court Decisions 9Da69631, Nov. 30, 201; 2006Da5593, Apr. 24,

However, in light of the above legal principles, even if the reasoning of the judgment below is based on this case, the defendant serves as a news agency that supplies news to other media. Thus, it is difficult to conclude that the defendant's basic nature is close to the newspaper solely on the ground that the defendant provided news to the general public through its website. Therefore, even if the plaintiff, who is a news agency, concluded a contract with various media agencies that are provided with news from him and received all materials, it cannot be viewed as a use of works similar to the defendant's infringement of the author's property right of this case. Furthermore, the above whole materials are included in the amount of money for all articles that the plaintiff provided to the other party to the contract and permitted the transfer. Considering all the circumstances such as the fact that the articles that can not be deemed as works protected under the Copyright Act can be included in the articles provided by the plaintiff, it cannot be viewed as an amount that the plaintiff would normally receive the whole materials under the above contract between the defendant and the defendant, based on this, it is difficult to calculate the amount of damages pursuant to Article 93 (2) of the former Copyright Act.

Nevertheless, under the premise that the Plaintiff’s case of entering into a contract with each media organization and receiving all materials constitutes the use of copyrighted materials similar to the Defendant’s infringement on author’s property rights in this case, the lower court deemed that the Plaintiff could calculate the Plaintiff’s damages pursuant to Article 93(2) of the former Copyright Act based on the whole materials stipulated in the contract before conversion (in such a case, the court recognizes the existence of damages, but it is difficult to calculate the amount of damages pursuant to Article 93 of the former Copyright Act, the court may determine the amount of damages pursuant to Article 94 of the former Copyright Act, which provides that the Plaintiff may consider the purpose of pleading and the result of examination of evidence, and determine the amount of damages pursuant to Article 93(2) of the former Copyright Act based on the above whole materials. Furthermore, in calculating the amount of damages pursuant to the above Article 93(2) of the former Copyright Act, the lower court sustained a fixed amount of materials calculated based on the Defendant’s publication number, influence, etc. of the media organization that was supplied with articles upon completion of the contract before transfer of materials, and its scope for three months.

4. On the second ground for appeal by the plaintiff

A. We examine whether the Plaintiff’s appeal as to the claim for damages arising from ex officio infringement of author’s moral rights is legitimate.

In a case where a plaintiff applies for change in the cause of a claim that is to be added to the existing claim either selective or preliminary claim because it has no logical relation, it is inappropriate to request multiple claims to be joined purely simple or conjunctive claims. Therefore, even if the court below received an application for change in the cause of a claim without appropriately exercising the right to command the lawsuit and making it corrected to a simple or preliminary claim, it cannot change the form of the claim into legitimate selective or preliminary consolidation relationship (see Supreme Court Decision 2005Da51495, Dec. 11, 2008, etc.). Meanwhile, where a new claim is added to the appellate court for a new claim, the appellate court shall judge as the first instance court as to the additional claim, and thus, both parties have appealed to the appellate court as to the existing claim more than the part cited in the first instance judgment, and the appellate court shall not dismiss the remaining part of the appellate court's decision as to whether the plaintiff's claim constitutes an additional one of the appellate court's judgment and the appellate court's judgment's decision should not be accepted.

According to the records, with regard to the portion of the claim for payment, the plaintiff sought compensation of 70 million won for damages equivalent to the whole material and its delay damages on the ground of the infringement of author's property right at first time. The court of first instance accepted only the claim for damages of 550,884 won among them and the remaining claims were dismissed. The plaintiff at the first day for preparatory pleadings of the court below which held that "the plaintiff shall add the claim for damages due to the infringement of author's property right which has already been claimed as the primary cause for the infringement, such as the right to indicate name or the right to maintain identity within the scope of the amount not cited in the main claim, as it stated in the preparatory brief dated April 3, 2006, which stated that "the plaintiff shall add the claim for damages due to the infringement of author's property right which has already been claimed as the main cause for the infringement of author's property right at the first time of the court below." The court below accepted the application for change of the above claim for damages, and did not dismiss the part of the plaintiff's appeal as to the appellate court's decision which did not dismiss the remaining part.

Therefore, in light of the above legal principles, the claim for damages arising from the infringement of author's property right added at the court below is not logically related to the claim for damages arising from the infringement of author's property right, which was the existing claim, and thus, it cannot be joined as a preliminary one. Thus, even if the court below received the application for change of the cause of the claim, the form of consolidation of the claim can not be changed to a legitimate preliminary one. In such a case, the court below should have judged as a court of first instance on the claim for damages arising from the infringement of author's property right added at the court below. However, the court below should have stated this only in the reasoning of the judgment, and did not make any decision in the text, it constitutes an omission of the judgment on the above additional claim, and therefore, the part of the claim is still pending at the court below and thus, it is unlawful

B. We examine the ground of appeal as to the part of the claim for explanation advertisement.

According to Article 95 of the former Copyright Act, an author may claim measures necessary for the restoration of his/her reputation against a person who has intentionally or negligently infringed his/her moral right in return for or together with compensation for damages. The honor referred to in Article 95 of the former Copyright Act refers to an objective evaluation, i.e., social reputation, which the author receives from the society on the value of his/her character, virtue, reputation, and credit. Thus, the author’s subjective evaluation, i.e., the author’s moral value, is not included.

Examining the reasoning of the judgment below in light of the records in light of the above legal principles, the court below is just in rejecting the plaintiff's claim for the cancellation of the plaintiff's reputation on the ground that the defendant did not enter the plaintiff's name as the author in posting the infringing article of this case on his own website or providing it to other media, etc., and even if the content was partially modified, such circumstance alone cannot be deemed to have undermined the plaintiff's reputation, and there is no evidence to acknowledge it otherwise, and there is no error in the misapprehension of legal principles as to the restoration of reputation

5. Conclusion

Therefore, the part of the judgment of the court below concerning the claim for damages arising from the infringement of author's property right is reversed, and that part of the case is remanded to the court below for a new trial and determination. The part concerning the claim for damages arising from the infringement of author's property right in the plaintiff's appeal is dismissed, and all remaining appeals are dismissed. It is so decided as per Disposition by the assent of all participating

Justices Cha Han-sung (Presiding Justice)