[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 Article 12(2) and the main text of Article 34(1) 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] 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., which is intended to link on the Internet. Although Internet users directly connect the link to the web page or individual copyrighted works by linking the link, such act does not constitute “a fixed object or a remaking as a tangible object” under Article 2 subparag. 14 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006), and it does not constitute “transmission or providing for use” under Article 19-2 of the same Act, and it does not constitute “the display or posting of tangible objects” under Article 19 of the same Act. Therefore, the above act of linking does not constitute reproduction, reproduction and display of tangible objects under Article 2 subparag. 14 of the former Copyright Act.

[2] Article 12(1) of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) provides that "the author shall have the right to indicate his/her real name or pseudonym in the publication of the original or reproduction of a work, etc." (the main text of Article 12(2) provides that "the person who uses a work shall indicate his/her real name or pseudonym in accordance with the indication of his/her real name or pseudonym, if the author has not expressed his/her special intention." Article 34(1) main text provides that "the person who uses the work under this Section shall indicate its source." In light of the legislative purport of each provision of the above Act or the relevant legal provision, the term "use of the work" in the main sentence of Articles 12(2) and 34(1) of the former Copyright Act means the use of the work in the same way as the reproduction, transmission, display, etc. protected by the author.

[3] Even if a notice that infringes on other persons’ copyright was posted at the Internet space provided by an online service provider operating the Internet portal site, and the Internet users can easily find the above notice through its 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, contents, period and method of posting, degree of damage caused thereby, the relation between the posted person and the victim, degree of response to both parties related to the posting, such as the degree of development of related Internet technology, economic cost from introducing 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 received a request for deletion and blocking of specific and individual notices from the victim who infringed on copyright due to the above posting, the above service provider’s duty to block the posting of the notice in detail or to recognize its existence, and if it is clearly possible for the service provider to take appropriate measures such as deletion of the notice, it can be established as a joint manager or manager of the Internet space.

[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] Articles 12 (see Article 12 of the current Copyright Act) and Article 34 (1) (see Article 37 (1) 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

YN Korea Limited Liability Company (Law Firm Mapsung, Attorneys Jeon Tae-tae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2008Na35779 decided November 19, 2008

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

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

1. The part providing external images by link method

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 photographs (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, in light of the purpose of legislation, etc., “exploiting” under the same Act refers to displaying or posting the original works of art works, architectural works, or photographs (hereinafter referred to as “works, etc.”).

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).

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its adopted evidence, and found that the defendant, as an online service provider, opened and operated the defendant website, which is the Internet portal site, through the classification of "welve image" and the classification of "welves", provided the plaintiff's photographic works or external images (hereinafter referred to as "videos or its electromagnetic files") which are copies of the plaintiff's web site, which are searched through the classification of "welve's image", if the Internet user selects it, the court below determined that the defendant's right to reproduction, transmission and display was not infringed upon the plaintiff's right to reproduction, transmission and display by dividing it into upper and lower parts. The above legal principles and records are acceptable.

This part of the judgment of the court below did not err in the misapprehension of legal principles as to the right of reproduction, transmission, and display under the former Copyright Act as alleged by the plaintiff, and the remaining grounds of appeal in this part of the plaintiff's grounds of appeal are that it erred in the selection of evidence or the recognition of facts which belong to the exclusive right of the court below,

2. Parts providing external images by detailed seeing method;

A. As to the infringement of the right of reproduction, etc.

(1) Based on the facts indicated in its reasoning, the lower court determined that, inasmuch as the Defendant copied the Plaintiff’s photographic work or its outer image 221, which is the reproduction, of the Plaintiff’s reproduction on the website without the Plaintiff’s permission, and posted approximately 500 】 330 】 330 cm (in the case of printing, approximately 17.64 】 13.23 cm in the case of printing x 13.23 cm in the above size (hereinafter referred to as “scopic image”), it infringed the Plaintiff’s right to reproduction, transmission and display of the above images.

(2) However, we cannot accept the judgment of the court below for the following reasons.

First, in order for the Defendant to have infringed the Plaintiff’s right of reproduction, transmission, and display on the Plaintiff’s above pictures searched through the classification of “overseas image” on its website, the Plaintiff must prove that the Defendant reduced the original image or at least the converted image to the size of the detailed image, and stored the converted image in the type, such as the server that he/she directly manages. However, there is no direct evidence to acknowledge this even after examining the record.

However, according to the records, in the case of an external image searched through the classification of “overseas image” in the Defendant website, the Defendant searched and collected the image posted on various Internet web sites using the image searching program, and stored the Internet address in which the original image and original image are stored. However, when the Internet user enters the search language, it appears that the Internet user has reduced the original image into the central image of the screen, and then, if the Internet user selects a specific her own image again, it shows information such as the address of the Internet (URL) where the original image is located and the file size on the website. However, it is merely a way to directly display the image on the website by using the so-called Internet link to a specific web page, other than the method of moving the Internet user to a specific web page, it can be readily concluded that the Internet user directly provided the same or other image on the same web page by means of using the same type, such as the original web page or other specific type of image, and it can be seen that the Defendant did not directly change the original image of the web page.

Nevertheless, the lower court determined that the Defendant is liable for damages arising from the infringement of the right of reproduction, transmission, and display rights, on the premise that the Defendant stored the Plaintiff’s photograph or the external image of 221 points of the original image or its reproduction, which is the copy, in the form of the server that it directly manages, in the form of the server, etc. which was searched through the classification of “overseas image” from the website. In so doing, the lower court erred by misapprehending the facts in violation of the rules of evidence, thereby adversely affecting the conclusion of the judgment. The Defendant’s assertion pointing this out is with merit, and on the other hand, the Plaintiff’s assertion disputing the error in computation of damages on the premise that the Defendant is

B. As to the violation of the right to indicate name and the duty to indicate source

Article 12(1) of the former Copyright Act provides that "the author shall have the right to indicate his/her real name or pseudonym in making his/her original or reproduction of a work public," and the main sentence of Article 12(2) provides that "a person who uses a work shall indicate his/her real name or pseudonym in accordance with the name of the author in the absence of such author's special declaration of intention," and the main sentence of Article 34(1) provides that "a person who uses a work under this Section shall indicate its source." In light of the legislative intent of each provision of the same Act and the relevant legal provisions, "use of a work" in the main sentence of Articles 12(2) and 34(1) of the former Copyright Act means the use of a work by means of reproduction, transmission, display, etc. protected as rights of the author.

In light of the above legal principles and the records, if the defendant selects the plaintiff's photograph searched through the classification of "overseas image" or the 102 image point 221 out of the external image, which is the copy of the defendant's web site, in order to recognize that the defendant infringed the plaintiff's right to indicate his/her name or violated his/her duty to identify the source, as alleged by the plaintiff, it shall be acknowledged that the defendant used the above image in the same way as the reproduction, transmission, display, etc. protected by the author's rights under the former Copyright Act. However, it cannot be readily concluded that the defendant used the above image in such a way.

Although the judgment of the court below differs from its reasoning, it is justifiable to conclude that it is difficult to view that the defendant infringed the plaintiff's right to indicate the name or violated the obligation to indicate the source. Therefore, contrary to the plaintiff's assertion, the court below did not err by misapprehending the legal principles as to the right to indicate name and the obligation

3. Parts providing internal images;

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

According to the records, the defendant provides Internet users who join the committee as members with the electronic bulletin board service that can add their internal images to the decision of the court below through the "Visual gambling" and "blogs". As to the reproduction (the interior image) of the plaintiff's photograph posted on the bulletin board, such as his own image 266 by using the above bulletin board function, without the plaintiff's permission, the defendant should prove that the defendant is liable for tort by directly infringing the plaintiff's right of reproduction, transmission right, display right, etc. by directly infringing the plaintiff's right of reproduction, transmission right, etc., the defendant should prove that the defendant reduced the original image of the photograph or its converted image to the size of its detailed image, separately from the space assigned to the members, and stored it in the type of the server, etc. directly managed by the defendant, and there is no direct evidence to acknowledge this.

However, according to the records, if members display the internal image using the above bulletin board function, the defendant extracted the image of her kives and stored it separately in the defendant's server. If Internet users input the search language, they display it by listing the original image of kives, and if Internet users choose a specific kives image of kives by reducing the original image of kives into the central page of the screen. The above image is indicated below the above image, and the contents, contents, file information, source, etc. are displayed, and the user selects the "automatic" function, the detailed image of each kives image is automatically circulated at a certain time, and if the user selects the "original image" or "original image" function, it is difficult to conclude that the original image is moved into the original image by kives, etc., where the original image is posted. However, as seen earlier, it is difficult for the defendant to directly change the original image or its original image by means of the Internet link.

Therefore, it cannot be deemed that the Defendant directly infringed the Plaintiff’s right of reproduction, transmission, display, etc. on the above photographs. While the lower court did not make an explicit judgment on this matter, it determined whether the Defendant is liable for aiding and abetting the Plaintiff’s copyright infringement on the premise that such infringement is not recognized, the Plaintiff’s assertion that the lower court erred by omitting the determination, etc., which affected the conclusion of the judgment is not acceptable.

B. 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 the Internet users can easily find the above notice through its search function, such circumstance alone does not immediately lead to tort liability against the above service provider on infringement of copyright. However, in light of the purpose of posting the copyright infringement notice, contents, period and method of posting, degree of damage caused by posting, 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 can be easily posted or recognized the existence of such notice can be recognized, and if such notice is not directly posted to the online service provider, it shall be deemed that the above service provider’s act constitutes a tort (see Supreme Court en banc Decision 2016Da2820, supra.

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 above internal images, the general Internet users’ use status of electronic message board services, 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 the above internal images on the Internet portal site, and posting them on their own pictures. Thus, the above internal images without any indication as to the copyright cannot be easily seen as having any technical means to automatically display the above internal images without any indication as to the copyright infringement, and it seems that there was no other technical means to automatically display the above internal images on the bulletin board, such as the Plaintiff’s image box, etc., and there was no evidence to deem that the Defendant specifically recognized the circumstances where the above internal images were posted, or it was evident that the existence of such internal images could have been known, and thus, it is difficult to deem that the Defendant did not have any obligation to delete the above internal images or block them, even if the Plaintiff’s request was not made.

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.

C. As to the burden of employer liability

In order to establish an employer's liability in tort, the user should have the relationship between the employer and the tortfeasor, i.e., the actual direction and supervision of the tortfeasor (see Supreme Court Decision 98Da62671, Oct. 12, 199). In light of the above legal principles and records, the court below is just in holding that the defendant cannot be deemed to have a relation of practically directing and supervising the Internet users who joined as a member. In so doing, the court below did not bear the liability for damages against the copyright infringement of the members. In so doing, the court did not err by misapprehending the legal principles

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part against the defendant among the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal is without merit and is dismissed. It is so decided as per Disposition by the assent

Justices Lee Hong-hoon (Presiding Justice)