The case holding that a neighboring right as a performer who had died Kim Jong-seok shall be attributed to anyone of his/her father's wife and wife.

Articles 64 and 124 of the Copyright Act

Defendant 1 and one other

Defendants

Attorney Professional Young-young

Seoul Central District Court Decision 2005No3470 Decided June 2, 2006

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

After finding the facts as stated in its reasoning, the lower court determined that neighboring rights as a performer who had been dead of the four existing music records of this case and the non-indicted and the defendant 1, who had neighboring rights, were co-ownership of the non-indicted 1 and the wife of the non-indicted 1, on the ground that the non-indicted 1 and the non-indicted 1 agreed to enter into a contract in the event of production of new music records other than the previous four music records of this case by using sound sources recorded in the previous four music records of this case as indicated in the judgment of the lower court in Article 3(3) of the Agreement between the non-indicted 1 and the defendant 1.

However, according to the agreement of this case, Article 3 of the agreement of this case is not related to the new music record to be produced by using the music source recorded in the previous four music records of this case, but to the music source itself. Paragraph (3) of the agreement of this case does not provide for the form of exercising neighboring rights except for the new music record to be produced by using the music source recorded in the previous four music records of this case. Thus, it cannot be deemed that Paragraph (3) of the agreement of this case is the agreement between the non-indicted and the defendant 1 to jointly own neighboring rights as the performer who had Kim Jong-man with respect to the previous four music records of this case. This is the same even if the court below takes into account other circumstances, it is reasonable to interpret the above provisions as to the profits of this case from the sale of the music record of this case to the non-indicted 4, because the above provisions differ by the types of music source, the rights of this case can not be viewed as the profits of this case to be accrued to the non-indicted 1 to the seller of the rights.

Nevertheless, under the premise that the agreement of this case set neighboring rights as a performer who had Kim Gam for the existing four music records of this case as the co-ownership by the Nonindicted Party and Defendant 1, the lower court determined that Defendant 1’s act of producing and selling a new music record other than the previous four music records of this case without the consent of the Nonindicted Party infringed the neighboring rights of the performer possessed by the Nonindicted Party. In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation of disposition documents, thereby adversely affecting the conclusion of the judgment, and the Defendants’ assertion on this point is with merit.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)