Korea Music Copyright Association (Attorney Park Young-jin et al., Counsel for the plaintiff-appellant)

M Planning Co., Ltd. and one other (Attorney Go-dae, Counsel for the plaintiff-appellant)

November 4, 2004

1. The plaintiff shall pay to the defendant Domi Media Co., Ltd. 1,251,590,146 won, and the defendant Domi Planning Co., Ltd shall pay 5% interest per annum from September 27, 2003 to December 2, 2004 and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. The costs of lawsuit shall be five minutes and one of them shall be borne by the plaintiff and the other by the defendants.

4. Paragraph 1 can be provisionally executed.

The Plaintiff shall pay 20% interest per annum to the day from the day after the last delivery date of the complaint of this case to the day of complete payment with respect to the above amount of KRW 1,478,886,503 among the above amount of the Defendant and each of the above amount of KRW 1,564,148,365, and Defendant M&C Co., Ltd.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the whole purport of the arguments in Gap evidence 1, 2-1 through 4, 11-22, 3-1, 2-1, 3-2, 2-1, 2-1 through 31, 11-1, 15, 14-1, 15, 14-1, 14, witness Kim Dong-dong, 3-2, and 3-2.

A. On February 23, 198, pursuant to Article 78(1) of the Copyright Act, the Plaintiff is a corporation that operates copyright trust management business, such as management of musical works and approval for use of musical works, with permission from the Minister of Culture and Tourism, and Defendant MM planning (hereinafter “Defendant MM planning”) and Defendant Domin Media (hereinafter “Defendant Domin Media”) are corporations that engage in sound record planning, production, and distribution business.

B. The Plaintiff entered into a copyright trust agreement with the author of this case to manage the copyright and the copyright acquired in the future by the author of this case during the contract period (the contract period shall be five years, and the contract period shall be automatically extended up to ten years, and the expiration of the copyright duration period shall expire) between the author of this case and each author of the author of this case and the author of the musical work of the 77 musical work in the attached table of the attached table of the 67 musical work and the attached table of the net book of the attached sheet of net book (hereinafter “the musical work of this case”). The Plaintiff entered into a copyright trust agreement with the content that the Plaintiff would distribute the royalty, etc. acquired from the management of each musical work of this case to the author of this case (However, with respect to each musical work of this case for which the Plaintiff did not enter into a copyright trust agreement with the author of the author of this case or the author of the musical work of this case, each of the attached sheet of the author of the author of this case was written in the

C. The Defendants jointly planned and produced the musical works of the 67 musical works (the “music musical works” among the 68 musical works is not included in the claim of this case because the Plaintiff did not enter into a copyright trust agreement with the said author and the author, and thus, the Plaintiff did not enter the above content in the claim of this case) in four CDs or TAPE as the title of “stage” and sold the said musical works from January 15, 201 to June 15, 2003 (the above musical works refer to four CDs or TAPE combining them into one set) (the above sound records are referred to as “stage editing sound records”).

D. Defendant Dom Media planned and produced five CDs or TAPE as “net”, and sold the above phonogram 92,811 from May 2, 2002 to June 2003 (hereinafter the above phonogram is referred to as “net Compilation music records,” and the year year year year included “net Compilation music records” as “net Compilation music records,” and the year year included Compilation music records and net Compilation music records as “each Compilation music records of this case,” in which the Plaintiff was not included in the claim of this case, since it was not included in the above content.

E. The Defendants: (a) each music record producer as indicated in the attached table of the music record producer in the attached table of the records that produced the original musical work of this case with respect to parts of the music recorded in each of the music records of this case [the above music record producer obtained permission to exploit the musical work of this case from the author of this case at the time of production of each original part of the music work of this case; (b) before the Plaintiff’s implementation of the new music record tax on July 1, 2003, even if the author and the author who entrusted the copyright acquired to the Plaintiff, intended to produce a new music work as a music record, he received a certain amount of money from the music record producer and allowed the use of the above music work to produce and sell the music record; and (c) in this case, the Plaintiff received a license to use the musical work of this case from the third party who is not the above music record producer and received a license to use the original music work of this case from each of the above music records producer.

F. The Defendants did not obtain permission to use the copyrighted musical work of this case again from the Plaintiff who was entrusted with the copyright of the instant copyrighted musical work from the authors of this case in manufacturing and distributing each of the instant copyrighted musical records. However, with respect to the copyrighted musical work described in the No. 1, 2, 4, 5, 12, 31, 34, 38, 39, 40, 42, 42, 43, 49, 56, and 61, the Defendants directly produced the original part of each of the instant copyrighted musical works (see, e.g., the recorded sound portion of the music record producer of the same Table).

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff, as neighboring rights, is entitled to transfer neighboring rights to others such as the Defendants, etc., or allow the use of the copyrighted work of this case. However, the Plaintiff’s copyright of the copyrighted work of this case requires the consent of the Plaintiff entrusted pursuant to Article 42 of the Copyright Act to permit the transfer of neighboring rights or the use of the copyrighted work of this case. Thus, the Defendants did not obtain permission to use the copyrighted musical work of this case from the Plaintiff in trust with the copyright of the copyrighted musical work of this case in addition to obtaining permission to use the copyrighted musical work of this case from the Plaintiff, although they did not obtain permission to use the copyrighted musical work of this case from the Plaintiff. The Defendants are liable for damages caused by infringement of the Plaintiff’s copyright. The amount of damages is equivalent to the royalty paid by the Plaintiff to the Plaintiff under the Plaintiff’s provision on the collection of royalties for copyrighted musical work of this case, the total amount is 1,478,86,503 won, the total amount is 1,4865 won, 2861, 36815 won and 584.65.8

B. The defendants' assertion

With regard to this, the defendants asserts as follows.

(1) The assertion that the author of this case transferred his right of reproduction and distribution to the original producer

The authors of this case transferred the right of reproduction and distribution among the author's property rights to the original producers, and the Defendants obtained permission to use musical works from the original producers. Therefore, in producing and selling each of the instant compilation records, it is not necessary to obtain permission to use separately from the Plaintiff entrusted with the author of this case or musical works.

(2) The assertion that the author of this case granted a comprehensive right to use to the original producer

In general, music record producers who produce the original musical work of this case using the original musical work of this case shall pay the royalty to authors such as musicians or writers for the purpose of selling it by using the original musical work of this case and obtain an all-inclusive right to exploit musical work in return for this payment. Phonogram producers are authorized to directly produce the original musical work of this case or permit other music producers to exploit the original musical work of this case in addition to the production of the original musical work of this case. The author of this case also grants the third party the right to use the original musical work of this case or to transfer the right to use it. Thus, the defendants' act of producing and distributing each edited music work of this case with the permission of use from the music record producers who obtained the comprehensive right to use as above does not infringe the plaintiff's copyright.

(3) The assertion that the author of this case paid the royalty directly to the author of this case

As to the musical works recorded in each of the compilation records of this case, the Defendants or the original producers paid the royalty directly to the authors of this case, the Defendants are not obliged to pay the royalty or damages separately to the Plaintiff.

(4) The assertion that each of the compilation records of this case is compilation works

Each of the compilation records of this case is a compilation work that has originality in the selection or arrangement of sound sources. According to Article 41(2) of the Copyright Act, the right to prepare compilation works under Article 21 of the same Act is not included in the scope of the above assignment unless otherwise stipulated, and therefore, the plaintiff does not acquire the right to prepare compilation works from the authors of this case. Thus, the plaintiff does not have any right to the plaintiff with respect to each of the compilation records of this case.

3. Occurrence of liability for damages;

A. Whether the Plaintiff’s authorization of use is necessary in addition to the authorization of use by the phonogram producer in the production and distribution of each of the compilation records of this case

(1) The relationship between the author's copyright of this case and the right of reproduction and distribution of the phonogram producer

(A) The Copyright Act defines “productions” as fixed in a tangible object, and defines “productions producers” as the first fixed person in a phonogram (Article 2 subparag. 6 and subparag. 7 of the Copyright Act). The right to reproduce and distribute the phonogram is granted to phonogram producers (Article 67 of the Copyright Act). In this case, the right to reproduce the phonogram granted to phonogram producers is not only the right to reproduce and reproduce the phonogram itself, but also the right to record the sound recorded in another fixed object by reproducing the phonogram; the right to reproduce and distribute the phonogram; the right to reproduce and distribute the phonogram is also the concept including the right to record the sound recorded in the phonogram; the right to reproduce and distribute the phonogram; and the right to authorize the use of the phonogram based on the above right (Article 72 of the Copyright Act). Meanwhile, the provision of neighboring rights as a producer of neighboring rights does not affect copyright (Article 62 of the Copyright Act).

(B) In full view of the above provisions, the right of reproduction and distribution as a neighboring right of a phonogram producer is an independent right arising independently from a group of musical works produced through the act of fixing the musical work first to the musical work, which is separate from the copyright to the musical works acquired by the author of the author of the author of the musical work or the musical work by the author of the musical work. Meanwhile, prior to the production of the original part of the musical work by the phonogram producer, it is intended for the author to use the musical work to fix the musical work in the musical work before the creation of the neighboring right. After the production of the original part, the author acquires the right of reproduction and distribution as the neighboring right holder's own right to the original part. Thus, the right to reproduce or distribute the original part of the musical work which the phonogram producer first fixed the musical work by the author is not the right to use the musical work by the author's permission, but the right to reproduce and distribute the original part, which is the inherent right of the author.

However, in addition to the right of reproduction and distribution of the phonogram producer's right of reproduction and distribution, the copyright of the author of the musical work itself exists, and the copyright law provides that the above right of the phonogram producer does not affect the copyright of the author.

(C) Therefore, in a case where a phonogram producer who has produced the original half of a musical work with the authorization of use from the author of the musical work makes a reproduction (including the act of reproducing the musical work and recording it in another fixed object as explained above) and distributes the original half of the musical work, it is an act within the scope of the right of reproduction and distribution of the phonogram producer, and thus, it is unnecessary to obtain separate authorization of use from the copyright holder of the musical work (the act of reproducing the sound recorded in the original half of the musical work by the phonogram producer is within the scope of the right of reproduction of the phonogram producer, and therefore, it is unnecessary to obtain separate authorization of use from the author because it is an act within the scope of the right of reproduction of the phonogram producer). ② In a case where a third party who is not the phonogram producer who has produced the original half of the musical work with the authorization of use from the author of the musical work intends to reproduce and distribute the original half of the musical work, a third party has the right to the original half of the musical work, and both rights should be obtained from the copyright holder of the author.

(2) In the case of each of the compilation records of this case

(2) Examining the case of the musical work of this case in the above two cases, ① the Plaintiff’s copyright rights to the musical work of this case excluding the above musical work 1,2,4,5,31,34, 39, 40, 42, 43, 49, 56, and 61 excluding the Plaintiff’s copyright rights to the musical work of this case excluding the copyrighted musical work of this case excluding the copyrighted musical work of this case 1,2, 5, 12, 34, 38, 40, 42, 43, 49, 56, and 61, where the Defendants directly produced the copyrighted musical work of this case excluding the copyrighted musical work of this case excluding the copyrighted musical work of this case excluding the copyrighted musical work of this case excluding the copyrighted musical work of this case from the Plaintiff’s copyright holders excluding the copyrighted musical work of this case excluding the copyrighted musical work of this case excluding the Plaintiff’s copyright holders excluding the copyrighted musical work of this case 15.

B. Determination as to the defendants' assertion

(1) Determination as to the assertion that the author of this case transferred the right of reproduction and distribution to the phonogram producer or granted the comprehensive right of use

It is insufficient to recognize that the author of this case transferred the reproduction and distribution right of the author of this case among the author of this case to each music record producer, or that the author of this case allowed the production of the original part of the musical work of this case to reproduce and sell and distribute it in the ordinary music record, or granted a third party the right to use the musical work of this case or to transfer the right to use the musical work of this case to a third party by using the original part of the original part of this case, and there is no other evidence to prove otherwise. In addition, it is true that the author of the music business in the music record industry has a practice of granting the third party the right to permit the use of the musical work of this case to the music record producer or the right to use the musical work of this case to a third party. It is difficult to believe that part of the witness testimony of this case has been done by giving the author of this case to the music record producer the right to use the musical work of this case to a third party, and there is no other evidence to recognize this otherwise.

(2) Judgment on the assertion that the author of this case paid the royalty directly to the author of this case

Since the phonogram producer paid the royalty to the author of this case at the time of producing the original musical work, as to the assertion that the Defendants did not separately pay the royalty or damages to the Plaintiff with respect to the compilation musical work of this case, as recognized earlier, the producers of the musical work of this case did not acquire the right of reproduction or distribution from the author of this case or obtain the comprehensive right of reproduction or distribution, as long as the Defendants did not obtain the right of reproduction or distribution, not only the producers holding the right of reproduction or distribution as to the original musical work of this case, but also the Plaintiff’s permission of use holding the copyright to include the musical work of this case. The permission of use granted by the Defendants from the Plaintiff is separate from the permission of use granted by the author of this case (or the Plaintiff) at the time of producing the original musical work. Thus, this part of the Defendants’ assertion is without merit.

Next, apart from the fact that the original producer paid the royalty to the author of this case at the time of the production of the original musical work, the Defendants did not have any obligation to pay the royalty to the author of this case separately. As to the assertion that the Defendants did not have any obligation to pay the royalty to the author of this case, there is no evidence to acknowledge that the Defendants directly paid the royalty to the author of this case in connection with the production of each of the compilation musical records of this case. However, according to the statement No. 11-9 of the evidence No. 11-9, the Defendant Dom Media can be recognized the fact that the Defendant obtained the consent to include the above musical work in the original musical records of this case from the Lee Young-hun, the author of the above musical work, the author of the original musical work of this case, and as long as the Plaintiff concluded a copyright trust agreement with the above Lee Young-hun and received the copyright in trust, the Plaintiff should obtain the royalty to use the above compilation musical work from the Plaintiff. Accordingly, the Defendants's assertion is without merit.

(3) Determination as to the assertion that each of the compilation records of this case is an compilation work

As alleged by the Defendants, each of the compilation records of this case is creative in the selection or arrangement of the sound sources in which the recording is recorded, and even if the authors of this case did not trust the Plaintiff with the right to make compilation works, the right to make compilation works does not extinguish or limit the author’s rights to each of the compilation works itself on the ground that compilation works were made. Thus, the Plaintiff entrusted with the copyright of the copyrighted musical works of this case is entitled to claim damages for infringement of copyright against the Defendants who used each of the copyrighted musical works of this case, which constitute the compilation records of this case without obtaining the Plaintiff’s license, based on the right to reproduction and distribution among the copyrighted works, and without obtaining the Plaintiff’s license (where the authors of this case did not trust the Plaintiff with the right to make compilation works, the author of this case need not obtain the license to exploit from the Plaintiff if they intend to make a compilation work using the copyrighted musical works of this case). The Defendants’ assertion is without merit).

C. Sub-committee

Therefore, with respect to the compilation records, the Defendants are liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to each copyright infringement on all musical works contained in the compilation records, other than the musical works described in Nos. 1, 2, 4, 5, 12, 31, 34, 38, 39, 40, 42, 43, 49, 56, and 61 of the attached annual price list.

4. Scope of damages.

(a) Method of calculating the amount of damages;

(1) According to Article 93(1) and (2) of the Copyright Act, in claiming compensation from an infringer for damages caused by an infringement, the author may estimate the profits gained by the infringer as the amount of damages suffered by the infringer in the event that the infringer gains profits from the infringement. The amount equivalent to the ordinary amount of damages suffered by the infringer in the course of the infringement may be claimed as the amount of damages suffered by the author in the course of the infringement. Here, the "amount equivalent to the ordinary amount of damages gained by the exercise of the right" refers to the amount objectively equivalent to the amount that the infringer would have paid in the course of obtaining permission to exploit the copyrighted work of this case if the infringer had obtained permission to exploit the copyrighted work of this case. The defendants' calculation of the "amount of profits received by the infringer" or "amount equivalent to the amount that the plaintiff would normally have received by the exercise of the right" is the amount equivalent to the royalty for the copyrighted work of this case paid by the defendants to the plaintiff or the plaintiff from the defendants.

(2) Guidelines for calculating user fees

According to the Plaintiff’s royalty collection regulation, the user fee for a musical work for one story of a music record shall be the amount calculated by dividing the amount obtained by deducting value-added tax from the price of the musical work for one story of the music record by 7/100 by the number of grains. However, according to an agreement between the Plaintiff and the Defendants, the CD shall be the lowest limit of 14 won per CD and 10.5 won per phonogram.

On the other hand, the number of musical works, which is the basis for the calculation of user fees, shall be calculated by dividing the number of authors trusted by the number of co-authors, and the number of co-authors shall be calculated by dividing the number of co-authors in trust by the number of co-authors.

[Ground of recognition] The fact that there is no dispute, Gap evidence 4, Eul evidence 14, witness Kim Dong-dong's testimony, the purport of whole pleading

(b) Compilation records;

(1) CDs

(1) The unit price for each valley;

16.47 won (= [16,00 won (sale price) 】 7% (7%) / 68 grain, and a small number of three jobs or less];

(2) The total amount of usage fees per valley.

13,875,596 won = [16.47 won (user fee) ¡¿ 842,477 (Sales)];

(3) Total usage fees.

676,435,305 won [the total number of music works excluding the musical works mentioned in the table of trust management x 1,2,4,55 x 48.75 x 12,31, 34, 38, 39, 40, 42, 43, 49, 56, and 61];

(2) TAPE

(1) The unit price for each valley;

10.5 won [(8,00 won (sale price) x 7% (7%) x 68 grain = 8.23 won, which is below 10.5 won, a lower limit, shall be applied].

(2) The total amount of usage fees per valley.

10,073,983 won = [10.5 won (user fee) ¡¿ 959,427 (Sales)];

(3) Total usage fees.

491,106,671 won [=10,073,983 won 】 48.75 grain (the number of trust management grain];

(3) Total

1,167,541,976 won (=676,435,305 won) + TAPE 491,106,671 won)

[Ground of recognition] The fact that there is no dispute, Gap evidence 3-1 and 2, witness Kim Dong-dong's testimony, the purport of whole pleading

(c) Compilation records of net books;

(1) CDs

(1) The unit price for each valley;

15.31 won (=17,500 won (sale price) ¡¿ 7% (7%)/80 grain)/80.

(2) The total amount of usage fees per valley.

761,289 won = 15.31 won (user fee) ¡¿ 49,725 (Sales)

(3) Total usage fees.

52,719,263 won = 761,289 won ¡¿ 69.25 note (total sum of the music works indicated in the trust management television and the table of net report)

(2) TAPE

(1) The unit price for each valley;

10.5 won [(8,750 won (sale price) 】 7% (7%)/80 grain = 7.65 won = below 10.5 won, which is the lowest amount of usage fees, and thus, applying 10.5 won, which is the lowest amount of usage fees]

(2) The total amount of usage fees per valley.

452,403 won = 10.5 won ¡¿ 43,086 (Sales)

(3) Total usage fees.

31,328,907 won = [452,403 won ¡¿ 69.25 grain (the number of grain managed by trust)];

(3) Total

84,048,170 won (i.e., CD 52,719,263 won + TAPE 31,328,907 won)

[Ground of recognition] The fact that there is no dispute, Gap's evidence 3-2, witness Kim Dong-dong's testimony, the whole purport of pleading

D. Sub-determination

Therefore, the Plaintiff is liable to compensate for damages caused by copyright infringement, and Defendant Dom Media is liable to compensate for damages for damages incurred by each of the above amounts, including KRW 1,251,590,146, and KRW 84,048,170, and KRW 1,257,541,97,976, and KRW 84,170, and KRW 170,000, and Defendant Domm Media is liable to compensate for damages incurred by each of the above amounts.

5. Conclusion

Thus, the plaintiff is jointly and severally liable to pay to the plaintiff the amount of KRW 1,167,541,976 among the above amount, and the amount of KRW 1,167,97,976 among the above amount, and the amount of KRW 5% per annum under the Civil Act from September 27, 2003 to December 2, 2004, which is the date of the final service of the copy of the complaint of this case as to the existence and scope of the above amount, and the amount of KRW 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and each remaining claim is dismissed, and it is so decided as per Disposition.

[Attachment]

Judges Choi Sung (Presiding Judge)