[1] The meaning of "original production" as an element for "work" under Article 2 subparagraph 1 of the Copyright Act

[2] The requirements for the protection as a derivative work under Article 5(1) of the Copyright Act

[3] Criteria to determine whether there exists a substantial similarity between two copyrighted works

[4] In a case where Company A created a performance planning draft prior to the experience, “A” and is proceeding with the experience center, and Company B et al. claimed damages against Company A et al. by proceeding with a similar experience center, the subject of the experience center, the case affirming the judgment below to the effect that Company A et al. infringed upon Company A’s property rights, such as reproduction right, since the draft plan contains independent expressions of ideas and emotions, and creative efforts are made to the extent that it can be a new work under social norms while maintaining the above draft plan and substantial similarity, and the experience center of Company A et al. added creative efforts to the extent that it may be a new work under social norms, and thus, it can be protected as a derivative work under Article 5(1) of the Copyright Act. The experience center of Company B et al. includes the selection and arrangement of major constituent elements of Company A’s production prior to the experience center, and it can be deemed that it is substantially similar to Company A’s reproduction right, etc.

[5] In a case where several claims are selectively joined in the first instance court and one of them is declared to be accepted and the defendant files an appeal, whether the appellate court may arbitrarily select and judge a claim which is not tried in the first instance court (affirmative), and in a case where the conclusion that the claim is deemed reasonable as a result of the hearing is the same as the decision of the first instance court, the measures to be taken by the appellate court shall be taken

[6] Meaning of Article 3(2) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (hereinafter “Special Cases Concerning Expedition, etc.”) where an obligor is deemed reasonable to resist the existence or scope of the obligation, and whether the application of the interest rate on delay damages as stipulated in Article 3(1) of the same Act is excluded where the appellate court accepted the argument in the first instance by disputing the obligor’s existence of the obligation (affirmative)

[1] Article 2 subparag. 1 of the Copyright Act / [2] Article 5(1) of the Copyright Act / [3] Articles 2 subparag. 1, 10, 123, and 125 of the Copyright Act / [4] Articles 2 subparag. 1, 5(1), 16, and 125 of the Copyright Act / [5] Articles 253 and 416 of the Civil Procedure Act / [6] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

[1] [3] Supreme Court Decision 2017Da212095 Decided June 27, 2019 (Gong2019Ha, 1447) / [2] Supreme Court Decision 2010Do7234 Decided May 13, 201 / [3] Supreme Court Decision 2016Da227625 Decided May 15, 2018 (Gong2018Sang, 1061) / [5] Supreme Court Decision 2014Da31448 Decided July 24, 2014 / [5] Supreme Court Decision 92Da7023 Decided September 14, 1992 (Gong192, 2871)

F&C Co., Ltd. (Attorney Noh Jeong-sik, Counsel for the defendant-appellant)

Defendant 1 and one other (Nex Law Firm, Attorneys Park Jin-jin et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2015Na15275 Decided January 13, 2016

The judgment of the court of first instance is reversed, and the judgment of the court of first instance is revoked. The Defendants jointly pay to the Plaintiff the amount of KRW 25,00,000 and the amount calculated by applying 5% per annum from August 30, 2013 to January 13, 2016, and 20% per annum from the next day to the date of full payment. The remainder of the Plaintiff’s claim against the Defendants is dismissed. 2/3 of the total litigation costs are borne by the Plaintiff, and the remainder is borne by the Defendants.

1. The grounds of appeal are examined.

A. As to the grounds of appeal Nos. 1, 2, and 4

1) As to whether the instant planning plan and the instant experience center can be protected as a copyrighted work

A) Article 2 Subparag. 1 of the Copyright Act defines a work as “a creative production that expresses human thoughts or emotions” and requires creativity. Even if creativity does not require complete originality, an author’s own expression of his/her thoughts or emotions should be at least copied to be recognized (see, e.g., Supreme Court Decision 2017Da212095, Jun. 27, 2019). Meanwhile, in order to be protected as a derivative work under Article 5(1) of the Copyright Act, the work shall be based on the original, while maintaining substantial similarity with the original, and adding new creativity by adding modification, increase, or decrease to the extent that it can be a new work under social norms (see, e.g., Supreme Court Decision 2010Do7234, May 13, 2011).

B) Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following circumstances.

(1) The instant draft plan (No. 7) is a draft of the instant draft of the performance prior to the Experience, in which the title “Is the well-known play of the people outside the country” is called “Is the well-used of the experience and performance,” and is a draft of the performance plan of the instant draft of the Experience prior to the instant event, wherein “Is the people outside the country with a strong view to the learning of the experience and performance.”

(2) In the instant planning, the Nonparty, who developed a performance hall called a material theater or an Objet theater, interpreted the pushing dust as living body or granted various symbols to the pushing dust, and let children experience the dust from a unique space, depending on the flow of theme and stories set out in the instant planning, in line with the flow of the stories and stories, and the composition of experience play, specifying the intention and the extreme reduced distance.

(3) 이 사건 체험전에는 어린이들의 밀가루 체험놀이 참여를 위한 각각의 테마별 공간과 소품의 형태 및 배치, 무대장치의 구성과 배경, 체험진행 배우들의 실연, 진행방법 및 진행규칙 등이 복합적으로 결합되어 있다. 이러한 요소들은 이 사건 기획안에 나타난 각각의 테마와 이야기의 흐름을 3차원의 공간에서 실체적으로 구현하여 어린이들로 하여금 그 공간(눈 내리는 마을, 밀가루나라, 빵빵나라, 반죽나라, 통밀나라)을 순차적으로 지나며 밀가루가 변화하는 다채로운 모습을 오감으로 체험하도록 하려는 이 사건 체험전의 제작 의도에 따라 선택·배열되어 유기적인 조합을 이루고 있다. 그에 따라 이 사건 체험전은 기존의 체험전이나 밀가루 놀이와는 구별되는 창작적 개성을 갖게 되었다.

C) Examining the foregoing circumstances in light of the legal principles as seen earlier, creativity can be recognized on the ground that the instant proposal contains independent expressions of ideas and emotions. The Experience Center has a creative identity distinct from the existing Experience, etc. by its constituent elements being selected, arranged, and systematically combined according to a certain intent of production. The flow of each of theme and stories indicated in the instant plan is substantially realized in space in space, and creative efforts have been made to the extent that they can become a new work under social norms, maintaining substantial similarity with the instant proposal, thereby protecting them as derivative works under Article 5(1) of the Copyright Act.

2) As to whether the defendants' experience prior to the experience of this case is substantially similar to the experience of this case

A) In determining whether there exists a substantial similarity between two copyrighted works in order to determine whether a copyright has been infringed, only those constituting a creative expression form should be compared (see Supreme Court Decision 2016Da227625, May 15, 2018, etc.).

B) Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following circumstances.

(1) The Defendant’s experience center is the subject of the instant experience center, such as the instant experience center, and children are making it possible for children to participate in the experiential play in order, consisting of theme space consisting of “Ilus, Brus, Cubs, and Cubs.” Specifically, the Defendants’ experience centered on theme of the said space, depending on the body of the foregoing space, the head of the “Ilus, Cubs, and Cubs.” Specifically, the Defendants’ experience centered on the part of the Defendant, namely, the main components of the “Ilus” way that Ilus can go into the top, the head of the Silus, the head of the Silus, the head of the Silus, and the head of the Silus, and the head of the Silus, and the head of the Silus, and the head of the Silus, the head of the Silus, in turn, selected the main components of the Plaintiff’s experience center and the combination, as it is.

(2) The Defendants’ experience records, like the instant experience center, are specifically written, and they feel the same as they participated in the instant experience center.

(3) Prior to the experience of the Defendants, parts of the elements that did not appear before the instant experience, such as candlelight rinks, candlelight singing, lighting strings, lighting strings, sand play, and separate strings, etc., are added to the Defendant’s experience, but the Defendants’ qualitative or quantitative share in the experience field is still still outstanding. Furthermore, prior to the Defendants’ experience, the phase of wind strings before the instant experience is omitted, but it is merely the process of shicking the smuggling.

C) Examining the above circumstances in light of the legal principles as seen earlier, the Defendants’ experience centers include creative expression forms based on the selection, arrangement, and organic combination of major components embodied with the intent to produce the instant experience center, and thus, can be deemed as having been substantially similar to the instant experience center.

3) Although the reasoning of the lower court is somewhat inappropriate, the lower court did not err by misapprehending the legal doctrine regarding copyrighted works, derivative works, and infringement of copyright, etc., or by omitting judgment, contrary to the grounds of appeal, in so doing, by misapprehending the legal doctrine on copyrighted works, derivative works, and infringement of copyright, or by omitting judgment, since the instant planning and the instant experience are works protected under the Copyright Act, and there exists substantial similarity between the instant experience and the Defendants’ experience prior to the instant experience.

B. Regarding ground of appeal No. 3

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules regarding copyright ownership, or by misapprehending the legal doctrine or omitting judgment.

C. Regarding ground of appeal No. 5

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by inconsistent with the reasoning of the judgment or by misapprehending the legal doctrine on the assessment of damages.

2. The decision shall be made ex officio;

A. As to the dismissal of the Defendants’ appeal

1) In a case where several claims are selectively joined from the beginning in the first instance trial, and a judgment of accepting one of the claims is rendered and the defendant has filed an appeal, the appellate court does not need to first examine and determine the claims cited in the first instance trial, and may independently select and judge the claims which are not tried in the first instance among several selective joined claims. However, even in a case where the claim is recognized as well as the conclusion is the same as the decision of the first instance court, the appellate court shall not dismiss the defendant's appeal, and shall issue an order of accepting the new claim after cancelling the first instance judgment (see Supreme Court Decision 92Da7023, Sept. 14, 1992, etc.).

2) Review of the reasoning of the lower judgment and the record reveals the following facts.

A) In the first instance trial, the Plaintiff selectively joined each claim for damages on the grounds that the Defendants’ act constitutes an infringement of author’s property right, an act of unfair competition under Article 2 subparag. 1(b) of the Unfair Competition Prevention and Trade Secret Protection Act, and a tort under the Civil Act.

B) The first instance court rejected the claim for damages caused by infringement of author’s property right, and the claim for damages caused by unfair competition, and rendered a judgment in favor of the Plaintiff partially citing the claim for damages caused by tort under the Civil Act.

C) On this ground, the Defendants appealed and filed incidental appeal, and the lower court selected and deliberated the claim for damages due to the infringement of author’s property right, and recognized the claim as partially reasonable, and rendered a judgment dismissing the Defendants’ appeal and the Plaintiff’s incidental appeal on the ground that the conclusion is the same as the judgment of the first instance.

3) Examining the aforementioned facts in light of the legal principles as seen earlier, the lower court, on the grounds that the judgment of the first instance and the conclusion were the same, dismissed the Defendants’ appeal, did not separately decide on the claim that was tried on the grounds of misunderstanding the legal principles as to selective consolidation of claims (the claim for damages arising from infringement of author’s property right) and dismissed the Defendants

B. As to the application of the interest rate on delay damages

Article 3(2) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (hereinafter “Litigation Promotion Act”) excludes the application of Article 3(1) of the same Act, which provides for special cases concerning statutory interest rates that serve as the basis for calculating the amount of damages for nonperformance of monetary obligations, “Where it is deemed reasonable for an obligor to dispute the existence or scope of the obligation before a fact-finding judgment declaring that the obligation exists to the obligor is rendered.” Here, “where it is deemed reasonable for an obligor to dispute over the existence or scope of the obligation” refers to cases where it is recognized that there is a reasonable ground for the obligor’s argument as to the existence or scope of the obligation. If the obligor’s argument was accepted in the first instance trial over whether the obligation exists or not, even if the argument was rejected in the appellate trial, it cannot be easily concluded that there is no reasonable ground, and in such cases, the interest rate for delay damages as prescribed in Article 3(2) of the Litigation Promotion Act cannot be applied until the judgment of the appellate court is rendered pursuant to Article 3(2) of the same Act.

In this case, the first instance court rejected the Plaintiff’s assertion on the claim for damages arising from the infringement of author’s property right, but the lower court subsequently cited part of the claim for damages arising from the infringement of author’s property right by following the first instance court’s decision. However, in light of the aforementioned legal principles, even if the lower court partly cites the claim for damages arising from the infringement of author’s property right of the Plaintiff, the lower court cannot apply the interest rate for delay damages as stipulated in Article 3

Nevertheless, the lower court erred by misapprehending the legal doctrine on the interest rate on delay damages as stipulated in Article 3(1) of the Litigation Promotion Act, which applied the interest rate on delay damages as well as the period from January 21, 2015, which is the date following the date of the first instance judgment, to January 13, 2016, which is the date of the original judgment, to the date of the original judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and this case is sufficient for the Supreme Court to directly render a judgment, and thus, the following decision is to be made pursuant to Article 437 of the Civil Procedure

According to the facts duly established by the lower court, the Defendants are jointly and severally liable to pay to the Plaintiff the amount of KRW 25,00,000,000 as damages for infringement of author’s property rights, as well as the damages for delay calculated at the rate of 5% per annum under the Civil Act from August 30, 2013, which is the date of delivery of the complaint of this case, to January 13, 2016, which is the date of the lower judgment that is appropriate to dispute as to the existence or scope of the Defendants’ obligation to perform, as sought by the Plaintiff, from August 30, 2013, to the date of full payment.

Therefore, the judgment of the court of first instance that accepted other selective claims is reversed, and the judgment of the court of first instance that accepted such selective claims, thereby ordering the Defendants to pay the said money, and the Plaintiff’s remaining claims against the Defendants are dismissed without merit, and 2/3 of the total costs of the lawsuit are assessed against the Plaintiff, and the remainder is assessed against the Defendants. It is so decided as per Disposition by the assent

Justices Noh Jeong-hee (Presiding Justice)