[1] Whether an act of linking an Internet constitutes reproduction, transmission, and display under the former Copyright Act (negative)

[2] The meaning of "use of a work" under the main sentence of Article 12 (2) of the former Copyright Act

[3] In a case where a notice that infringes on other persons' copyright was posted at the Internet posting space provided by an online service provider who operates the Internet portal site, the elements for establishing joint tort liability as an assistant by omission against the act of a person who directly posted the above notice to the online service provider

[1] Article 2 subparagraph 9-2 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) (see Article 2 subparagraph 10 of the current Copyright Act), Article 14 (see Article 2 subparagraph 22 of the current Copyright Act), Article 16 (see Article 16 of the current Copyright Act), Article 18-2 (see Article 18 of the current Copyright Act), Article 19 (see Article 19 of the current Copyright Act) / [2] Article 12 (see Article 12 of the current Copyright Act) of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) / [3] Articles 750 and 760 (3) of the Civil Act

[1] Supreme Court Decision 2008Da77405 Decided November 26, 2009 (Gong2010Sang, 15) / [3] Supreme Court en banc Decision 2008Da53812 Decided April 16, 2009 (Gong2009Sang, 626)

Plaintiff

UNNN Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Nam-mun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na35762 decided December 16, 2008

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

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

1. As to the liability for tort caused by a direct infringement

A. Whether the reproduction right, transmission right, and display right are infringed

Article 2 Subparag. 14 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006; hereinafter the same) provides that “duplicating” means fixing works of art, architectural works, or photographic works (hereinafter referred to as “works, etc.”) in tangible objects or remaking them into tangible objects by means of printing, photographing, copying, sound or visual recording, or other means. Article 9-2 of the same Act provides that “transmission” means transmitting works by means of wireless or wire communications or providing them for use so that the public may receive or use them at the time and place individually selected. Meanwhile, Article 19 of the former Copyright Act does not provide for separate definition regarding “exploiting” under Article 19 of the same Act, however, considering the legislative intent, etc., “exploiting” under the same Act refers to displaying or posting the original works of art works, architectural works, or photographic works so that the public can view them freely.

However, the so-called Internet link is merely an indication of the web location or route of individual copyrighted works, etc. stored in the web page or website, etc. that the link intends to link on the Internet. Although Internet users directly connect the link to the web page or each copyrighted work, it does not constitute “a fixed object or a remaking into a tangible object” as provided in Article 2 subparag. 14 of the former Copyright Act, and it does not constitute “transmitting or providing for use” as provided in Article 9 subparag. 2 of the same Act, and it does not fall under not fall under “drawing or posting a tangible object” as provided in Article 19 of the same Act. Accordingly, the above link does not constitute reproduction, transmission and display as provided in the former Copyright Act (see, e.g., Supreme Court Decision 2008Da7475, Nov. 26, 2009).

The court of the first instance, cited by the court below, acknowledged facts based on its adopted evidence, and held that the Defendant, as an online service provider, opened and operated the Defendant’s website, which is the Internet portal site, cannot be deemed as infringing the Plaintiff’s right of reproduction, transmission, and display, solely on the ground that the Defendant provided the Plaintiff’s image (hereinafter “video”) by linking the original image to the address where the original image is stored, with respect to the instant photograph (the reproduction of the Plaintiff’s photograph) of this case (the reproduction of the Plaintiff’s photograph) by providing the electronic bulletin board service, the image search service, and the video search service.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to the right of reproduction, transmission and display under

B. Whether the right to indicate name has been infringed

Article 12(1) of the former Copyright Act provides that "the author shall have the right to indicate his/her real name or second name in making his/her original or reproduction of a work public," and the main text of Article 12(2) provides that "the person who uses a work shall indicate his/her real name or second name on the basis of his/her own name, if the author does not express his/her special intention." In light of the legislative purport of the above provision or the relevant legal provisions, it is reasonable to view that "use of a work" in the main sentence of Article 12(2) of the former Copyright Act means the use of a work by means, such as reproduction, transmission, display, etc. protected by the author as the right of the author.

Examining the reasoning of the first instance judgment cited by the lower court in light of the aforementioned legal principles and records, the lower court is justifiable to have determined that the Defendant cannot be deemed to have infringed the Plaintiff’s right to indicate name as to the above photograph, on the grounds that there is no evidence to acknowledge the fact that the Defendant used the instant photograph as the author’s right under the former Copyright Act, such as reproduction, transmission, display, etc.

2. As to the burden of aiding and abetting

Even if an online service provider, who operates the Internet portal site, posted a notice that infringes on another person’s copyright at the Internet space provided by the online service provider, and can easily find the above online users through the search function, such circumstance alone does not immediately lead to tort liability against the above service provider for infringement of copyright. However, in light of the purpose of posting the copyright infringement notice, content, period and method of posting, degree of damage caused thereby, relationship between the bulletin provider and the victim, degree of response of both parties related to the posting such as demand for deletion, development of related Internet technology, economic cost following the introduction of technical means, etc., it is clear that the illegality of the copyright infringement notice posted at the Internet space provided by the above service provider is evident, and even if the above service provider did not directly request the victim to delete and block other persons’ copyright infringement, such notice may be easily posted or recognized, or the existence of such notice may be recognized, and if such notice is not directly posted to the service provider, it shall be deemed that the above service provider’s act constitutes a tort (see, e.g., Supreme Court en banc Decision 2002Da1682.

Examining the case in light of the above legal principles, according to the circumstances cited by the court below, such as the contents of the photograph of this case, which is the reproduction of the Plaintiff’s photograph, the use status of the Internet users’ electronic message board service, and the level of development of related Internet technology, etc., the culture of free sharing and exchange between individuals and club members is rapidly spreading by opening a space for posting individuals and club members on the Internet portal site and posting their pictures on their own. Thus, it was not easy for the Defendant to easily find whether the photograph of this case without any indication as to the copyright infringe other persons’ copyright, and there was no technical means to automatically display such a copyright infringement notice. In addition, it appears that the Defendant did not have any specific knowledge of the circumstances where the photograph of this case was posted on the Plaintiff’s bulletin board “Brog”, “Cbook”, and “Saar” bulletin board, etc., and it was difficult to view that the Defendant did not have any obligation to block or block the Plaintiff’s tort even if there was no request to do so.

Therefore, the judgment of the court below that the defendant cannot be held liable as a joint tortfeasor by aiding and abetting the defendant is just and acceptable. In so doing, the court below did not err by misapprehending the legal principles as to aiding and abetting liability as alleged by the plaintiff.

3. As to the burden of employer liability

In order to establish an employer's liability in tort, the use relationship between the employer and the tortfeasor must have a relation to the actual direction and supervision of the tortfeasor (see, e.g., Supreme Court Decision 98Da62671, Oct. 12, 199). Examining the reasoning of the judgment below in light of the aforementioned legal principles and the records, the court below cannot be deemed to have a relation of actual direction and supervision of the Internet users who joined as a member. In light of the above legal principles and records, the court below is just in holding that the defendant did not bear the liability for damages against the copyright infringement of the members.

4. As to the ground of appeal on the scope of damages

Since the court below denied the defendant's liability for damages caused by infringement such as the right of reproduction, etc. of the photograph of this case, the argument that the above liability for damages is recognized cannot be a legitimate ground for appeal.

5. 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 on the bench.

Justices Lee Hong-hoon (Presiding Justice)