[1] The method of recognizing the relationship according to the requirements for infringement of the right of reproduction under the Copyright Act

[2] The case reversing the judgment of the court below that the right of reproduction was infringed solely on the ground that the two were substantially similar, without examining and determining whether the subject work was made based on an existing work, although there is room to view that the subject work was created independently regardless of the existing work

[1] In order for the right of reproduction to be protected under the Copyright Act to be infringed, it should be recognized that the target work has been produced on the basis of the existing work, in addition to the fact that there is a substantial similarity between the existing work claimed to have been infringed and the work in comparison with the existing work. Even though the fact that the target work was produced on the basis of the existing work is not acknowledged directly, if indirect facts such as the possibility of access to the existing work, and the actual similarity between the target work and the existing work are acknowledged, the target work may be presumed to have been produced on the basis of the existing work. However, even if the target work was created on the basis of the existing work, if indirect facts that could have been deemed to have been created on the basis of the existing work regardless

[2] The case reversing the judgment of the court below that the right of reproduction was infringed solely on the ground that the two were substantially similar, without examining and determining whether the subject work was made based on the existing work, although there is room to view that the subject work was created independently regardless of the existing work

[1] Article 16 of the Copyright Act / [2] Article 2 subparagraph 1 of the Copyright Act and Article 16 of the Copyright Act

Applicant (Attorney Seo-dilution et al., Counsel for the plaintiff-appellant)

Respondent 1 and one other

Seoul High Court Decision 2004Ra293 delivered on May 25, 2005

The part of the judgment below against the respondent 1 is reversed, and that part of the case is remanded to the Seoul High Court. The appeal by the respondent 2 is dismissed. The costs of appeal by the respondent 2 are assessed against the respondent 2.

The grounds of appeal are examined.

1. As to the respondent 1's ground of appeal

In order to establish infringement of the right of reproduction protected by the Copyright Act, it should be recognized that the target work has been produced based on the existing work in addition to the fact that there is a substantial similarity between the existing work claimed to have been infringed and the work in comparison with the existing work. In addition, even though the fact that the target work has been produced based on the existing work is not directly recognized, if indirect facts such as the possibility of access to the existing work, and the possibility of access between the target work and the existing work, etc. are acknowledged, it can be presumed that the target work has been produced based on the existing work, but it is difficult to conclude that the target work has been produced based on the existing work if indirect facts that can be deemed to have been created independently regardless of the existing work, even if the target work was created prior to or after the existing work.

However, according to the facts acknowledged by the court below, the respondent 1 had the possibility to access the work of this case at the time of preparing the book of this case. Among the books of this case, there is a substantial similarity between the portions stated in the table 1 through 11, 16 through 21, 23 through 39, 41, 43, and 44 at the time of original adjudication and the corresponding parts of the work of this case. Thus, there is room to presume that the book of this case was prepared based on the work of this case. However, according to the evidence submitted by the respondent 1, which was not rejected by the court below, the respondent 1 had an interest in the design of this case and the technologies of this case, and it seems that the applicant 1 had the ability to independently write the book of this case from 195 to see the overall content of the work of this case, and it is more widely known that the previous work of this case had the ability to see the content of this case as the basic and subsequent contents of the work of this case.

However, in determining whether the applicant's right of reproduction has been infringed, the court below held that the applicant's right of reproduction has been infringed solely on the ground that the applicant's right of reproduction was substantially similar, without examining and determining the fact that the part in the attached table Nos. 1 through 11, 16 through 21, 23 through 39, 41, 43, and 44 of the Respondent 1's book of this case was prepared on the basis of the applicant's work of this case. The court below erred by misapprehending the legal principles on the infringement of the right of reproduction and failing to review necessary matters, which affected the conclusion of the judgment.

2. As to the appeal by the respondent 2

The respondent 2 did not submit a statement of grounds for appeal within the statutory period and did not state the grounds for appeal in the petition of appeal.

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the respondent 1, the part against the respondent 1 among the judgment below shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The appeal by the respondent 2 shall be dismissed, and the costs of appeal by the respondent 2 shall be borne by the respondent 2 who is the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)