In case where the holder of author’s property right of a work recorded in a phonogram which is an author’s work, has reproduced the phonogram without the consent of the phonogram producer who is the neighboring right, whether the reproduction right of the phonogram producer is infringed (affirmative)

Article 2 Subparag. 5 of the Copyright Act provides that “Phonograms”, which are the object of neighboring rights of a phonogram producer, shall be construed as “musics are fixed in a tangible object”; Article 2 Subparag. 6 of the same Act provides that “Phonograms” shall be construed as “a person who plans and takes the responsibility for the first production of music records.” The neighboring rights of a phonogram producer are generated from the time when the first fixing of music records is first made in the music record, and are independent rights independent of the author’s property rights related to copyrighted works, such as writers or musicians. Therefore, reproduction of music records without the consent of the phonogram producer, which is the neighboring rights, constitutes an act infringing on the right of reproduction of the phonogram producer, even though they are the author’s property rights related to copyrighted music records, constitutes an act infringing on the author’s right of reproduction; and thereby, the producer is liable to compensate for damages if the damage was incurred to the phonogram producer.

Article 2 subparag. 5 and 6, Article 78, and Article 125 of the Copyright Act

[Plaintiff-Appellant] Plaintiff 2005Da74894 decided Feb. 22, 2007 (Gong2007Sang, 493)

1. The term “the term” means “the term” means “the term “the term” means “the term” means “the term.

Defendant (Law Firm Han & Lee, Attorneys Park Jong-soo, Counsel for defendant-appellant)

Seoul Western District Court Decision 2019Na42454 decided June 18, 2020

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of appeal are examined.

1. Article 2 Subparag. 5 of the Copyright Act provides that the term “musics”, which is the object of neighboring rights of the phonogram producer, shall be “musics are fixed in a tangible object”; Article 2 Subparag. 6 of the same Act provides that “productions producer” shall be “the person who plans and takes the responsibility for the first production of music records.” The neighboring rights of the phonogram producer are generated from the time when the first fixing of music records in the music record is first, and are independent rights separate from the author’s property rights to copyrighted works, such as writers or musicians (see Supreme Court Decision 2005Da74894, Feb. 22, 2007, etc.). Therefore, even if the author’s property right holder of copyrighted music records, which are the author’s neighboring rights, reproduction of the music record without the consent of the phonogram producer constitutes an act infringing the right of reproduction of the phonogram producer, and if such damage was inflicted on the phonogram producer, then the producer shall be liable for damages.

2. Review of the reasoning of the lower judgment and the evidence duly admitted by the lower court reveals the following circumstances.

A. The Defendant, who is a master artist and a receiver, wreed each of the sound sources of this case as indicated in the judgment of the court below during the exclusive contract period with the Plaintiff, which is a entertainment planning company and a music record producer, and the Plaintiff produced and published each of the music records of this case as indicated in the judgment of the court below on his own

B. The instant MR file was created as indicated in the lower judgment, in which each musical musical instrument was separately recorded in the production process of each of the instant music records.

C. As to each of the instant sound sources, the Plaintiff transferred all of the right of the master, owned by the Plaintiff, to the Nonparty Company as indicated in the lower judgment. The Plaintiff’s right to the instant MR file was not included in the subject of transfer.

D. After the termination of the exclusive contract with the Plaintiff, the Defendant visited the Plaintiff’s representative to visit the Plaintiff’s recording room and received the instant MO file stored therein on the outer hard disc.

3. We examine the above circumstances in light of the aforementioned provisions and legal principles.

The instant MR file is the same as each of the instant music records and is fixed in a tangible medium, and its neighboring rights are generated from the time when the first fixing of the relevant music record. Therefore, apart from the fact that the Defendant had copyright as the author of the instant music record and the musical works recorded in the instant MR file, the Plaintiff has neighboring rights, such as the right to reproduction, etc. of the music record as the producer of the music record, who plans and takes charge of the production of the instant music record and the instant MR file as a whole. Although the Defendant was the holder of author’s property right of the music work recorded in the instant MR file, it can be deemed that the Defendant infringed the Plaintiff’s right to reproduction of the instant MR file without the Plaintiff’s consent as the producer of neighboring rights. Furthermore, it is reasonable to deem that the Plaintiff suffered damage at least by the Plaintiff, without paying reasonable payment for the instant MR file, which is the Plaintiff, even if the original copy of the instant MR file was owned by the Plaintiff.

4. Nevertheless, solely on the grounds indicated in its reasoning, the lower court did not accept the Plaintiff’s claim for damages arising from the infringement of the Plaintiff’s right of reproduction by deeming that the Plaintiff’s right to the instant MR file was infringed, or that the loss was not likely to occur in the future. In so determining, the lower court erred by misapprehending the legal doctrine on the occurrence of damage caused by the infringement of the producer’s right of reproduction, or by failing to exhaust all necessary deliberations

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)