[1] The part to be compared in determining whether there is a substantial similarity between a translation work and a target work in order to determine whether a translation copyright has been infringed

[2] In determining whether there is a substantial similarity between the target work and the translated work, whether the similarity of expressions, etc. that are not protected by the Copyright Act should be taken into account in determining whether the target work has been written based on the existing work (negative)

[3] The elements for recognizing the substantial similarity between a translation work and the subject work on the ground that similar words or phrases have been used

[4] The case holding that although the target paintings used words or phrases partially similar to the expressions in the novel which translated the original novel in French language into Korean language, the above novel cannot be seen as being reduced from the target paintings because it is difficult to view that the creative characteristics of the novel as a translation work are reduced, substantial similarity between them cannot be acknowledged

[5] The legal nature of the exclusive translation publication right and the case where a third party’s work cannot be deemed as a translation of the original work, whether the exclusive translation publication right holder needs to preserve the third party’s claim for the suspension of infringement on behalf of the copyright holder (negative)

[1] The creativity of a translation work is a part of the original work's creative and mental effort, such as the selection and arrangement of proper words and phrases to express the original work in a language of another country with a language system, the order of the sentences and sentences, the loyalty to the original work, the character of characters, mutual relationship, background setting, etc., regardless of the development of the case indicated in the translation work, the development of the case, specific reduced distance, the character of characters of characters, and the establishment of background, etc., which can be seen as the creative expression of the original work. Thus, in determining whether there is a substantial similarity between a translation work and the subject work in order to judge whether the translation copyright has been infringed, it shall be compared only with the original expression of the translation work as above.

[2] Whether the target work has been written on the basis of an existing work and whether both works have actual similarities are separate judgments. Unlike the latter's judgment, the former's judgment can also be taken into account not only the expressions protected by the Copyright Act but also the expressions not protected by the Copyright Act, etc. Therefore, in judging whether the target work has been written on the basis of a translated work, the similarity of expressions, etc. not protected by the Copyright Act can be taken into account, and it is not necessary to take into account the similarity of the above parts, etc. in judging the actual similarity between the two works.

[3] It cannot be readily concluded that there is a substantial similarity between a translation work and an object work or a translation copyright of a translation work has been infringed solely on the circumstance that the words or phrases that are partly similar to the words or phrases that form individual translation expressions of a translation work are discovered in the subject work. In order to recognize such substantial similarity, the creative characteristics of the translation work should reach the degree that the original characteristics of the translated work are sensitive to the subject work as a result of the use of words or phrases in the subject work.

[4] The case holding that although the target paintings used words or phrases partially similar to the expressions in the novel which translated the original novel of French language into Korean language, it cannot be seen that the creative characteristics of the novel as a translation work are reduced from the target paintings, and thus, substantial similarity between the two cannot be recognized.

[5] A person who has entered into a contract for permission to exclusively exploit a work with a copyright holder may exercise the right to request suspension of infringement, etc. under Article 91 of the Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) on behalf of the copyright holder to the extent necessary to preserve his/her right. However, the exclusive translation right acquired through a contract for permission to use with the copyright holder is a contractual right with the content to exclusively translate and publish the original work. Thus, if the work prepared by a third party cannot be deemed as a translation of the original work, the holder of the exclusive translation right needs not seek suspension of infringement against the third party on behalf of the copyright holder.

[1] Article 2 subparag. 1, Article 5(1), and Article 91 of the Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [2] Article 2 subparag. 1, Article 5(1), and Article 91 of the Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [3] Article 2 subparag. 1, Article 5(1), and Article 91 of the Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [4] Article 2 subparag. 1, Article 5(1), and Article 91 of the Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [5] Article 2 subparag. 1, Article 91 of the Copyright Act (amended by Act No. 8101 of Dec. 28, 2006)

[1] Supreme Court Decision 2004Da18736 decided Jul. 8, 2004 (Gong2004Ha, 1310) / [5] Supreme Court Decision 2005Da11626 decided Jan. 25, 2007 (Gong2007Sang, 333)

Plaintiff (Law Firm Sejong-jin General Law Office, Attorneys Lee Byung-jin et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Gyeong, Attorneys Lee Lee-woo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na86199 decided July 13, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. The creativity of a translation work is a part of the original work's creative and mental effort, such as the selection and arrangement of proper words and phrases to express the original work in a language of another country with a language system, the order of the sentences and sentences, the loyalty to the original work, the character of characters, mutual relationship, background setting, etc., apart from the fact that the development of the case indicated in the translation work can be seen as a creative expression of the original work. Thus, in determining whether there is a substantial similarity between the translation work and the subject work in order to determine whether the translation copyright has been infringed, it shall be compared only with the original expression of the translation work as above.

B. Examining the above legal principles, the reasoning of the lower judgment, and the record as follows.

First of all, the novel of this case is a work which translations the original novel in the French language of the French language of the "Icen" into Korean language. Although the novel of this case and the novel of this case are similaritys in the creation of major figures, mutual relation, setting of situation, specific reduction distance and the development process of cases, specific unification, etc., the above parts are not creative expressions newly added to the novel of this case by the translator of the original novel of French language, and therefore, there is no substantial similarity between two works on the grounds of the similarity of the above parts.

Whether the target work has been produced in accordance with the existing work and whether both works have actual similarities are separate judgments. Unlike the latter's judgment, the former's judgment can also be taken into account not only the expressions protected by the Copyright Act but also the expressions not protected by the Copyright Act. Thus, in judging whether the target paintings have been written in accordance with the novel of this case, the similarity of expressions, etc. not protected by the Copyright Act can be taken into account, and it is not necessary to take into account the similarity of the above parts, etc. in judging whether both works have actual similarities.

Next, the words and phrases that can be partially similar to the words and phrases of the novels of this case are found from the dynamics of this case. However, such circumstances alone cannot be readily concluded that the novels of this case and the dynamics of this case have substantial similarity between the novels of this case or that translation copyright of the novels of this case has been infringed, and in order to recognize the substantial similarity, it should be recognized that the novels of this case have reached the degree of creative characteristics of the translation as the result of the use of similar words and phrases in the dynamics of this case, which can be seen as the dynamics of this case's novels of this case's novels of 2,00 and the total sentences 1,000, and some similar words and phrases in the dynamics of the judgment of the court below can not be seen as the whole similar words and phrases of this case's novels of this case's novels of this case's dynamics of the whole dynamics of this case's novels of this case's dynamics of children, etc.

Although the reasoning of the judgment below is somewhat insufficient, the conclusion that the translation copyright of the novel of this case cannot be deemed to have been infringed because the novel of this case and the target book of the novel of this case cannot be deemed to have been substantially similar. Therefore, contrary to what is alleged in the ground of appeal, there is no error of law that affected the conclusion of the judgment due to the determination of similarity or misapprehension of legal principles as to the infringement of

In addition, insofar as the translation copyright of the novel of this case cannot be deemed to have been infringed due to the lack of substantial similarity between the two copyrighted works, the reproduction, distribution, etc. of the novel of this case shall not be deemed to have been permitted only if the phrases or similar parts of the novel of this case are deleted or modified in the target paintings. The argument in the grounds of appeal on this part shall not be accepted.

2. Regarding ground of appeal No. 2

A person who has entered into a contract for permission to exclusively exploit works with a copyright holder may exercise the right to request suspension of infringement, etc. pursuant to Article 91 of the Copyright Act on behalf of the copyright holder within the necessary scope in order to preserve his/her right (see Supreme Court Decision 2005Da11626, Jan. 25, 2007). However, since the exclusive publication right acquired through a contract for permission to use with the copyright holder is a contractual right with the content of translation and publication of the exclusive original work, if it is not deemed that the work prepared by a third party is a translation of the original work, the holder of the exclusive publication right needs not seek suspension of infringement, etc. against the third party on behalf of the copyright holder.

In light of the above legal principles, the reasoning of the judgment, and the records, the plaintiff agreed to faithfully and accurately translate the above French novel with the copyright holder of the original French novel and entered into a contract for exclusive translation and publication, which is a kind of contract for permission to use, so that the plaintiff has the right to be preserved in itself to exercise the creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor's creditor'

Although the reasoning of the judgment of the court below is somewhat insufficient, the conclusion that the lawsuit of this case seeking suspension of infringement by subrogation of copyright holder of the original French novel is unlawful is just, and there is no error of law that affected the conclusion of the judgment due to the misapprehension of legal principles as to the exclusive translation and publication contract or subrogation right as otherwise alleged in the ground of appeal.

3. Conclusion

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

Justices Kim Hwang-sik (Presiding Justice)