[1] Whether the problem of university admission is a work that can be protected under the Copyright Act (affirmative)

[2] Where the issue of university admission is recognized as a copyrighted work, the copyright holder

[3] Whether the act of citing the problem of university admission constitutes a requirement under Article 25 of the Copyright Act

[1] A work protected under the Copyright Act shall be a creative expression of ideas or emotions obtained by a person’s mental effort as a result of the person’s emotional effort, regardless of the method or form of expression, and shall be all objects belonging to the scope of the literary, scientific or artistic work. As such, creativity is required as a requirement. Here, the term “originality” does not refer to a complete originality, but merely means a work that does not imitate another’s work, but contains an independent expression of author’s own ideas or emotions, and it is sufficient to the extent that the work is characterized as a product of mental effort according to the author’s own name and that the work can be distinguished from the existing work of other author’s own. Furthermore, unlike literary, plagiarism, reproduction, etc., a derivative work written by various methods, such as translation, arrangement, type, or painting of the original work, etc., unlike literary, plagiarism, etc., is also protected as an independent work, even if university entrance issue is created based on the existing textbook or academic theory, it constitutes a work protected under the Copyright Act.

[2] The right of an author under the Copyright Act, which has created a work, is naturally created from the time of the author’s writing of the work, regardless of its nature, regardless of its form or procedure, and whether a copyright has been registered in the name of the relevant administrative agency is irrelevant to the establishment of the copyright itself. Therefore, the copyright of university admission issue naturally belongs to the pertinent school juristic person of each university. The author registered in the Ministry of Culture, Sports and Tourism itself does not affect the fact that the author is registered in the name of the president of each university or in the name of each university itself.

[3] Unlike university entrance examination or college entrance examination conducted by the National Education Evaluation Institute under the Ministry of Education, it does not seem that the issue of university entrance examination by each university implemented since 1994 does not seem to have been widely announced to the general public. In order to be a reference within the "justifiable scope" under Article 25 of the Copyright Act, first, it can be recognized that the quoted work is the main part of the quoted work, i.e., the quoted work has an incidental nature for the quoted work, and that the quoted work is a subordinate one. However, it is not possible for the defendants to recognize that each university entrance examination by each university was not a legitimate purpose in the form of university entrance examination under the title "the issue of university entrance examination" which was divided by each field, and which was implemented in the National Education Evaluation Institute.

[1] Article 2, Article 5, / [2] Articles 9, 10, / [3] Article 25 of the Copyright Act

Defendant 1 and one other

Defendants

Law Firm Sami General Law Office, Attorneys Kim Young-soo et al.

Seoul District Court Decision 96Da485 delivered on December 10, 1996

Supreme Court Decision 96Do227 delivered on November 25, 1997

The defendants' appeal is dismissed.

1. Summary of grounds for appeal;

The summary of the defendants' grounds for appeal by his defense counsel is as follows: First, the term "work protected by the Copyright Act" should be creative expression of human thoughts and emotions; however, the problem of university admission does not constitute a work because it has such originality, and thus, it cannot be deemed that it does not constitute an infringement on copyright or publication right; thus, the court below recognized the facts charged of this case as it is. Second, even if the issue of university admission is recognized as a work, it shall be deemed that the copyright belongs to the professor who written the above issue or the school juristic person to which the professor belongs. Therefore, since the right of publication of the victim Kim Jong-sung established by the president of each university who is not a copyright holder cannot be a legitimate claimant, the court below recognized the facts charged of this case based on the above victim's complaint under the premise that the above victim is a legitimate holder of publication right, and misunderstanding the legal principles as to the copyright holder of university admission issue, and third, the defendants' act of entering the court below, despite Article 25 of the Copyright Act, did not violate the legal principles of the Copyright Act.

2. Determination on the grounds for appeal

First, the first ground for appeal is that a work protected under the Copyright Act is a creative expression of ideas or emotions obtained by a person’s mental effort (see Article 2 subparag. 1 of the Copyright Act), which is a work that is an object belonging to the scope of a literary, scientific or artistic work, regardless of the method or form of expression, and that is a creative expression of ideas or emotions obtained by a person’s psychological effort. Thus, the creativity required as a requirement is not different from the Defendants’ assertion. However, the term “originality” does not mean a complete originality, but rather means a work that does not simply imitate others, but contains the original idea or emotions of the creator’s own idea or emotions. Accordingly, to meet such requirements, it is sufficient that the work is given the character of the author’s own mental effort as a small production of the author’s own and it is sufficient to distinguish it from the existing work of another author’s own. Moreover, the second copyrighted work written by various methods, unlike writing, plagiarism, reproduction, etc., is also subject to protection under the Copyright Act, as long as it does not constitute an independent work protected under Article 5(1) of the Copyright Act.

Next, the right under the Copyright Act, which the author who created a work (see Article 2 subparag. 2 of the Copyright Act), is naturally created from the time of the author’s writing of the work, irrespective of its nature, regardless of its form or procedure (see Article 10(2) of the Copyright Act). Whether the copyright is registered in the relevant administrative agency or whose name it is registered, shall be irrelevant to the establishment of the copyright itself. Thus, the copyright of the university entrance issue of this case naturally belongs to the relevant school juristic person of each university (see Article 9 of the Copyright Act). The fact that the author registered in the Ministry of Culture and Sports is the name of the president of each university or the name of each university, or the name of each university itself does not affect the above recognition (see Article 2 subparag. 2 of the Copyright Act). Furthermore, each of the contracts to establish the publication right of this case is written by the president of each of the above school juristic person or each of the above parties, on the premise that each of the aforementioned agreements to establish the publication right of this case was invalid.

Then, according to the third point of appeal of the Defendants, the article 25 of the Copyright Act provides that "any work already made public may be quoted for news reports, criticism, education, research, etc., in conformity with fair practices within the reasonable scope." The Defendants argue that the acts of citing the problem of entering universities of this case constitute the requirements prescribed in the above Article. Unlike public health, first of all, it is deemed that the university entrance examination conducted by the National Education Evaluation Institute under the literature delivery (or the Ministry of Education) have been restored for 15 years, and that the problem of admitting university entrance examination conducted from 194 is not widely announced to the general public, and even if it is not so, the defendants' acts of admitting the problem of admitting each case's reading materials for the purpose of admitting the problem of admitting each case's reading materials for the purpose of admitting the problem of admitting each case's reading materials for the purpose of admitting each case's reading materials for the purpose of referring to citing each case's reading materials for the purpose of admitting them by using Kim, reference materials, etc.

Finally, unlike other publishing companies which recognize the right of publication of the victim Kim Jong-su and pay the user fee properly, the Defendants actively sold the instant teaching materials with the possibility of coping with the market demand of the victim's goods even though they knew that the direct infringement on the victim's right of publication was done, the amount of the teaching materials distributed and sold by the Defendants, the degree of damage inflicted upon the victim, and the extent of the damage inflicted upon the victim, and the Defendants did not make any effort to recover damage to the victim after the crime of this case. In full view of all circumstances, which are the conditions for sentencing specified in the records of the instant case, including the fact that the Defendants did not impose a fine of KRW 2,00,000 imposed by the lower court on the Defendants, and thus, the Defendants' appeal disputing the unfair sentencing cannot be accepted as it is without merit.

3. Conclusion

After all, the judgment of the court below is just and there is no reason to appeal by the defendants, and the appeal by the defendants is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition

Judges Go Young-gu (Presiding Judge) and Kim Dong-dong