[1] The case holding that the identity of the two programs should not be recognized solely by the fact that a considerable part of the video programs of the complainants is included in the video program registered by the defendant, and there should be no creative part newly added by social norms to the defendant registration program in preparation for all the programs

[2] Requirements for recognizing a copyright of a program created by an employee to an employer, etc. under Article 5 of the former Computer Programs Protection Act

[3] The case holding that even if both the program registered by the defendant and the program in which the copyright belongs to the complainants were developed by the same computer program in which the complainants are in use with the complainants, if the program planned by the complainants is completed separate from the program of the defendant and completed registration of the program, and the defendant paid the above computer program in exchange for the development cost by requesting the development of the program to the complainants in addition to the instructions of the complainants, it cannot be concluded that the program of the defendant is an occupational creation of the complainants

[1] Articles 23(1)2, 29(3), and 46(3)3 of the former Computer Programs Protection Act (amended by Act No. 6843 of Dec. 30, 2002) / [2] Article 5 of the former Computer Programs Protection Act (amended by Act No. 6843 of Dec. 30, 2002) / [3] Article 5 of the former Computer Programs Protection Act (amended by Act No. 6843 of Dec. 30, 2002)

Defendant

Prosecutor and Defendant

Attorney Dok-type

Seoul Central District Court Decision 2003No11080 Delivered on November 23, 2004

The guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The prosecutor's appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

A. Violation of the Computer Programs Protection Act

(1) Summary of this part of the facts charged

The Defendant (1) around February 5, 2002, at the office of the Program Deliberation and Conciliation Committee (registration number 2002-01-013-3572, etc.) registered in the said commission, re-improvemented the JFK EITR, etc., which was the program already developed and registered around 2000, by Non-Indicted 1 itself, and the copyright holder was registered as a copyright holder of the aforementioned computer program (registration number 2002-01-13-736, 202-13-737, 202-13-737, 202-13-737, 202-13-78, 201-13-78, 2002-13-739).

(2) Summary of the judgment below

According to the court below's first instance court's 20-1 and 20-1, the defendant's 20-1 and 3-2's 10-2's 20-1's 20-1's 20-1's 3-2's 1's 20-1's 3-2's 1's 20-1's 2's 3-2's 1's 20-1's 2's 3-1's 2's 17's 20's 3-1's 2's 20's 1's 1's 20-1's 3-2's 1's 20's 1's 20-1's 7's 20's 20's 20's 3-1's 10's 20's 3-1's 20's 1'.

In addition, the court below rejected the defendant's assertion to the effect that the defendant's copyright holder of the video program of this case is not non-indicted 1 in light of the following: (a) as to the defendant's assertion that the copyright holder of the video program of this case does not belong to the user in the case of an occupational creation in Article 5 of the Program Act; (b) Non-indicted 3 received remuneration of KRW 1.5 million per month; (c) was employed by Non-indicted 1 and engaged in the development work under the direction and method of program development; and (d) Non-indicted 1 and Non-indicted 3 did not have any different provision as to the author of the program of this case, the copyright holder of the video program of this case rejected the defendant's assertion; and (b) as to the defendant's assertion to the effect that the defendant's reproduction is erroneous in the selection of objects to be appraised or the original standard method of appraisal; (c) there is no need to examine whether there is any additional originality; and (d) one sample of the two programs is considerably the same and the remaining parts made without the name of the program.

(3) Judgment of this Court

However, we cannot accept such judgment of the court below for the following reasons.

(A) Whether the instant video program and Nonindicted Party 1’s program are identical

Examining the facts acknowledged by the lower court in light of Articles 2, 3(2), 46, 29(3), and 23(1)2 of the Program Act and the facts acknowledged by the lower court, the purport of the instant facts charged is, on the premise that the instant video program in the name of Nonindicted Party 2 registered by the Defendant is identical to the instant video program in the year 2002, the Defendant’s act of registering the program is insufficient solely on the basis that considerable portion of the program in the year 2002 of Nonindicted Party 1’s 202 is included in the instant video program, and there is no new creative part added by social norms to the instant video program in preparation for all and a whole.

그런데 원심이 채용한 2002. 12. 31.자 프로그램심의조정위원회위원장의 감정보고서(수사기록 1책 322면 이하)는, 이 사건 공소제기 이전에 고소인 공소외 1의 신청에 의하여 수사기관에서 실시된 감정결과인데, 그 감정 당시 감정대상물로서 공소외 1의 2002년 프로그램(등록번호 2002-01-13-3573호는 동영상 외국어 학습용 S/W, 2002-01-13-3575호는 동영상 외국어 강의용 S/W, 2002-01-13-3572호는 동영상 강의용 및 학습용 데이터 편집기, 2002-01-13-3574호는 동영상 외국어 강의용 S/W 스킨에디터) 중 1개인 ‘2002-01-13-3572호 (Α)’와 이 사건 동영상프로그램(등록번호 2002-01-13-736호는 동영상 외국어 학습용 S/W, 2002-01-13-737호는 동영상 외국어 강의용 S/W, 2002-01-13-738호는 동영상 강의용 및 학습용 데이터 편집기, 2002-01-13-739호는 동영상 외국어 강의용 S/W 스킨에디터) 중 1개인 ‘2002-01-13-738호 (Β)’만을 표본 추출하는 방식으로 대비함으로써 양 프로그램 모두를 비교하지 아니하였을 뿐 아니라, 그 감정내용도 이 사건 동영상 프로그램(Β) 중 공소외 1의 2002년 프로그램(Α)을 제외한 나머지 부분이 어느 정도이며 거기에 새로이 부가된 창작적인 부분이 존재하는지 등은 알 수 없게 되어 있는바, 그와 같다면 위 감정결과는 이 사건에 있어서, 양 프로그램의 동일성 여부를 판단하기 위한 자료로는 부족한 증거라고 할 것임에도 불구하고, 원심은 그 점에 관하여 감정을 별도로 실시하는 등 이를 확인하지 아니한 채 위 감정보고서 및 같은 취지의 위 위원장에 대한 사실조회결과와 위 프로그램들을 만든 시기가 비슷하다는 점만을 토대로 이 사건 동영상 프로그램이 공소외 1의 2002년 프로그램과 동일하다고 인정하고 말았으니, 여기에는 채증법칙 위반으로 인한 사실오인이나 심리미진의 위법이 있고, 그것이 판결 결과에 영향을 미쳤다 할 것이므로, 이 점을 지적하는 피고인의 상고이유의 주장은 이유 있다.

(B) Whether the author of the instant video program is Nonindicted 1

If an employer, etc. intends to recognize the copyright of a program created by an employee, etc. under Article 5 of the Program Act that provides that an author of a program created in the course of business shall be deemed a corporation or other employer, etc., the requirements such as planning the preparation of the program, planning by an employer, etc., being an employee who is engaged in the duties of an employer, etc. (it shall be in the relationship of use), creation of the program in the course of business of an employee, and the contract or employment rules, etc.

In light of the above legal principles and records, Nonindicted 3 and Nonindicted 1, the direct developer of the video program of this case, were in the use relationship, and Nonindicted 3 was recognized as the development of the program, but even according to the facts acknowledged by the court below, the program of 202 planned by Nonindicted 1, which was completed separate from the video program of this case and completed the program registration. The Defendant, separate from Nonindicted 1’s instructions, requested Nonindicted 3 to develop the video learning and culture benefit program of this case, paid approximately 4 million won for the development expenses. Accordingly, Nonindicted 3 and Nonindicted 1 were in the use relationship, and it was hard to say that Nonindicted 3’s business was the development of the program of this case. However, the court below erred in the misapprehension of the legal principles as to the copyright of the video program of this case without any reasonable reason, which affected the conclusion of the judgment of the court below.

(C) Furthermore, ex officio, the facts charged in the instant case are unclear as follows.

(1) A point of the object

The facts charged of this case are premised on the fact that the victim non-indicted 1's 202 program (registration number 2002-01-13-3572, etc.) was already registered as of February 5, 2002 at the time of the defendant's act of registering the program, but according to the records, it is recognized that the non-indicted 1's 2002 program was registered only after June 1, 2002, since the program was later registered, the facts charged of this case are temporal contradictions in that the program was reproduced after the prior registration was stated to the effect that the program was reproduced. If it is not so, if the defendant's act of registering the program of this case was already completed on February 5, 2002, which was already completed on February 5, 2002, if the defendant made a false registration by reproducing it, it should be made clear.

(2) Points of conduct

The facts charged in the instant case alone are as follows: (a) whether the Defendant’s act of reproducing Nonindicted Party 1’s program in 2002 constitutes false registration; or (b) whether the Defendant’s act of registering as his own by copying Nonindicted Party 1’s program is false registration; or (c) notwithstanding that the copyright holder of the instant video program was Nonindicted Party

B. The point of larceny

Examining the adopted evidence of the first instance judgment maintained by the court below in light of the records, it is just for the court below to find the defendant guilty of the crime of larceny, and there is no illegality such as misconception of facts or misunderstanding of legal principles against the rules of evidence, without making a proper deliberation as alleged in the grounds of appeal, and thus, this part of the grounds of appeal by the defendant

2. As to the Prosecutor’s Grounds of Appeal

The court below rejected the evidence, which corresponds to the facts charged as to the violation of the Program Act concerning the soil benefit program of this case, and reversed the judgment of the court of first instance which found the defendant guilty of the above facts charged and acquitted the defendant. In light of the records, the court below's determination is just and acceptable, and there is no illegality such as misconception of facts against the rules of evidence as alleged in the grounds for appeal.

3. Conclusion

Therefore, among the guilty parts of the judgment of the court below, the part concerning false registration under the Program Act cannot be reversed without examining other grounds of appeal by the defendant. The appeal against the guilty part concerning the larceny by the defendant is without merit. However, since the charge of larceny which the court below found the defendant guilty and the charge concerning the above false registration are sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the judgment of the court below as to the larceny should also be reversed together with the guilty part concerning the charge of false registration.

Therefore, the part of the judgment of the court below regarding conviction shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices

Justices Park Ill-sook (Presiding Justice)