2019Na473 Compensation for Damages

A

Law Firm Gyeong-ju, Counsel for defendant-appellant

Attorney Kim Young-ho

1. B

2. C

3. D;

4. E.

5. F;

6. G.

7. H;

Defendant 3 through 7 Attorney Shin Young-chul, Counsel for the defendant-appellant

Attorney Kim Jae-soo, Counsel for the plaintiff-appellant

Jeonju District Court Decision 2016Da10515 Decided December 20, 2018

December 6, 2019

January 17, 2020

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. Defendant B, E, F, G, and H shall jointly pay to the Plaintiff 30,000,000 won, Defendant C, and D shall jointly pay 30,000,000 won with 15% interest per annum from the day after the delivery date of the copy of the complaint of this case to the day of full payment.

1. Facts of recognition;

This Court's reasoning is that the corresponding part of the judgment of the first instance is the same as the corresponding part of the judgment of the first instance, except in the case where "a court has been tried" and "a court has been tried." Thus, this Court's reasoning is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the claim of this case

A. The parties' assertion

This Court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this Court's reasoning is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

B. Determination

1) The occurrence of damages claim

We examine whether the Plaintiff has the right to claim damages as the author of each work of this case.

In full view of the following facts and circumstances, it is reasonable to view that the author of each of the copyrighted works of this case is the plaintiff, and barring special circumstances, the plaintiff has the right to claim compensation for damages arising from the copyright infringement of each of the copyrighted works of this case.

① As to each of the instant copyrighted works, the Plaintiff registered the copyright, and each of the instant copyrighted works is presumed to have copyright in the case of copyrighted works without the indication of the author, without the indication of the author (Article 8(2) of the Copyright Act). Although the registration of the copyright was cancelled in the case of copyrighted works Nos. 2 and 6, it is difficult to view that the substantive legal relationship is denied as to the Plaintiff’s creation of each of the instant copyrighted works, since the grounds for cancellation were falsely registered on the date of creation and the date of publication.

② The Defendants asserted that each of the instant copyrighted works was an occupational low-quality crops of the Z in which the Plaintiff worked as executive officers and employees. However, there is no evidence to deem that each of the instant copyrighted works was published in the name of the Z (Article 9 of the Copyright Act).

③ The time when the Plaintiff registered each of the instant copyrighted works was around 2015, and the registration was delayed later than the time of creation and publication, and at the time, the Z was deemed dissolved as a dormant company. However, such circumstances support the possibility that the Plaintiff’s copyright registration was independent of the Z’s work.

④ In criminal cases against the Defendants in violation of the Copyright Act, the Defendants were sentenced to a fine or a summary order (Defendant B, D, E, G.F) due to the fact that they infringed the Plaintiff’s copyright, or was sentenced to a disposition of suspension of indictment (Defendant H), and in cases where the Defendants were subjected to a disposition of non-prosecution (Defendant C), the fact of copyright infringement was recognized, but the intention was denied, and thus, was not subject to

2) Scope of damages

In addition to the aforementioned facts and evidence Nos. 11 through 15, the author of each of the instant copyrighted works is the Plaintiff, and the Defendants are recognized as having used each of the instant copyrighted works without permission. As such, the Plaintiff is liable to compensate for damages suffered by the Defendants’ copyright infringement, and the amount of damages is equivalent to the amount ordinarily payable by the copyright exercise (Article 125(2) of the Copyright Act), barring any special circumstance.

As of June 30, 201, the Plaintiff entered into a license agreement for the use (use) of a work with AK as of June 30, 201, and agreed from AK to receive KRW 50 million per annum in return for the use of the work in this case, and claims damages of KRW 30 million, either or in combination with the Defendants, respectively. According to the evidence mentioned above, the Plaintiff prepared a license agreement on the work in this case with AK as of June 30, 201, and the Plaintiff transferred KRW 95 million to the Plaintiff. However, in light of the fact that the date of preparation of the said agreement was against the year 201, the form of the above agreement is identical to the standard form of the license agreement for the use of the work in this case, and thus, it is difficult for the Plaintiff to acknowledge the damages of KRW 50,000,000 as the date of preparation of the agreement, the Plaintiff did not have any other evidence that the Plaintiff actually used the work in this case as of October 30, 2014.

3. Conclusion

Therefore, the plaintiff's claim against the defendants shall be dismissed in its entirety as it is without merit, and the judgment of the first instance is just, and the plaintiff's appeal against the defendants shall be dismissed in its entirety. It is so decided as per Disposition.

Judges O Jae-sung

Judges Kim Jin-forest

Judges Park Jae-in