[1] In a case where the program copyright is not externally expressed that it has been transferred or permitted to use, whether the right is presumed to have been reserved to the program author (affirmative), and the method of interpreting the case where the content of the contract is unclear

[2] In a case where Gap corporation Eul et al. retired from Byung corporation, upon Eul's request, changed the program of the computer system supplied by Byung corporation by entering into an individual contract with Byung corporation, and the similarity of two programs was evaluated, and the program was identical or similar to 89.66% based on the previous program, and 87.96% based on the revised program, the case holding that the court below erred in the misapprehension of legal principles, etc. by holding that Eul et al. did not infringe Eul et al.'s right to reproduction or alteration of the previous program, even though Eul et al. transferred the whole or part of the modified program beyond the license for use of the program reproduction code, etc. within the necessary limit for the maintenance and repair of the computer system, in light of the type of contract conclusion, content of the contract, and circumstances after the contract conclusion

[1] Articles 15 (see current Article 45 of the Copyright Act), 17 (see current Article 46 of the Copyright Act), and 105 of the former Computer Programs Protection Act (repealed by Article 2 of the Addenda of the Copyright Act, Act No. 9625, Apr. 22, 2009); Article 105 of the Civil Act / [2] Article 7 (see current Article 10 of the Copyright Act), Article 15 (see current Article 46 of the Copyright Act), Article 17 (see current Article 46 of the Copyright Act), Article 29 (1) (deed current Article 123 of the Copyright Act), Article 32 (see current Article 125 of the Copyright Act), Article 105 of the former Computer Programs Protection Act (repealed by Article 2 of the Addenda of the Copyright Act, Act No. 9625, Apr. 22, 2009); Article 105 of the Civil Act

[1] Supreme Court Decision 95Da29130 delivered on July 30, 1996 (Gong1996Ha, 2639)

Plaintiff (Law Firm Na, Attorneys Kim Young-young et al., Counsel for plaintiff-appellant)

Defendant 1 and 3 others (Attorney Ha Sung-sung, Counsel for the defendant-appellant)

Defendant 5 (Attorney Error-sung, Counsel for defendant-appellant)

Seoul High Court Decision 2009Na47052 decided June 9, 2010

The part of the lower judgment against the Plaintiff regarding the ○○○○ program is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff’s remaining appeals and all appeals by Defendants 1, 2, 3, and 4 are dismissed.

The grounds of appeal by the plaintiff and the defendant 1, 2, 3, and 4 are also examined.

1. Plaintiff’s ground of appeal

A. As to the claim for damages caused by business obstruction and trade secret infringement

In light of the records, even if Defendant 2, 3, 5, and 4 and Defendant 1, 2, etc. of the lower court co-defendant 1, and 2, etc. of the lower court (hereinafter “Defendant 2, etc.”) did not store the Plaintiff’s original program in the Plaintiff’s file server after completion of maintenance and repair work on the Plaintiff’s escape trading office, or did not return the Plaintiff’s business data and original program to the Plaintiff at the time of withdrawal, the changed original program was stored on the Plaintiff’s web page, and the Plaintiff’s escape trading office server did not appear to have interfered with the maintenance and repair work of the Plaintiff’s escape trading office. In addition, in light of the Plaintiff’s characteristic of the program supplied by the Plaintiff, and the terms of maintenance and repair contract concluded between the Plaintiff and its escape trading office, it is reasonable to view that the Plaintiff’s escape trading office obtained permission from the Plaintiff for the use of the Plaintiff’s trade secret code within the scope necessary for the maintenance and repair of the computer system, etc., and it can not be seen that the Plaintiff’s sales office code was used by the Plaintiff’s.

This part of the judgment below is somewhat inappropriate in its reasoning, but it is just in its conclusion that it did not recognize business obstruction and trade secret infringement, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to business obstruction and trade secret infringement

B. As to the part of ○○○○○ program among the claim for damages caused by the infringement of a program copyright

(1) According to the reasoning of the judgment below, the court below determined as follows: (a) based on the adopted evidence, the defendant company changed the △△△△△ program supplied to the non-party 1 company (hereinafter "non-party 1 company"); (b) the defendant 2 et al. used the Nowon-gu held without returning at the time of retirement from the plaintiff company to the defendant company; (c) the defendant 3, 4 and the above co-defendant 1 of the court below stored the source code of the program provided by the plaintiff to the non-party 1 company, including the plaintiff's △△△△△; (d) restored the file of the ○○○○○○ program returned by the co-defendant 1 to the non-party 1 company; and (e) found that the defendant company did not have the right of reproduction of the restored △△△△△△△△ program to the non-party 1 company's name or revised △△△△△△△△ program based on the changed △△△△ program.

(2) However, it is difficult to accept the above determination by the court below for the following reasons.

If the program copyright is not externally expressed that it has been transferred or permitted to use, it is reasonable to presume that the right to the program author is reserved. If the content of the contract is unclear, it is reasonable to interpret the specific meaning by taking into account transaction practices, the party’s knowledge and actions, etc. (see Supreme Court Decision 95Da29130, Jul. 30, 1996, etc.).

According to the records, in entering into an electronic computer system including hardware and software between the non-party 1 company, the plaintiff entered into an individual contract for each shop where the system is supplied, and the supply contract does not include all or part of the program copyright, and rather, the supply contract does not include the content of the transfer of the program copyright, and the non-party 1 company should not freely copy or transfer any s/www supplied by the "B (the plaintiff company)" or transfer it to any other person, and it should not be impliedly. The contents of the supplied s/www shall not be damaged by disclosure of the contents or method of use, and the above contents shall be correspond to the Copyright Act enforced after July 1987. The plaintiff completed the registration of the plaintiff program in the name of the non-party 1 company from April 12, 201 to September 30, 2004 with respect to each program listed in the table 1 or 4 of the judgment below, which constituted the △△△△△ program.

Examining the above facts in accordance with the legal principles as seen earlier, barring special circumstances, the Plaintiff cannot be deemed to have transferred all or part of the copyright of the △△△△ program beyond the license for use of program source code, etc. within the necessary limit for the maintenance and repair of the computer system supplied to Nonparty 1 for each individual store, in light of the form of contract between the Plaintiff and Nonparty 1, the content of the contract, and the circumstances after the contract conclusion.

Therefore, if Defendant 2, etc. developed the “○○○○○○○” program substantially similar thereto using the “△△△△ program,” it would infringe the Plaintiff’s right of reproduction or alteration of the Plaintiff’s △△△ program depending on whether new creativity was added. However, the lower court determined otherwise on the premise that the Plaintiff transferred all or at least part of the copyright of the △△△△△ program to Nonparty 1. Accordingly, the lower court erred by misapprehending the legal doctrine on transfer of the program copyright, etc., thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

2. As to the grounds of appeal by Defendant Company, Defendant 2, 3, and 4

A. As to the claim for damages arising from the infringement of a program copyright, the part of the ▽▽▽△ program

(1) Whether the △△△△ program is creative or not

원심판결 이유와 그 채택 증거에 의하면, 제1심법원의 촉탁에 의한 감정인인 컴퓨터프로그램보호위원회가 소외 1 회사(이하 ‘소외 2 회사’이라 한다)의 ☆☆☆☆☆☆☆☆ 프로그램과 원고의 ◇◇◇◇ 프로그램의 소스코드를 구성하는 파일을 정량적으로 비교한 결과 ☆☆☆☆☆☆☆☆ 프로그램을 기준으로 9.89%, ◇◇◇◇ 프로그램을 기준으로 6.50%만이 동일·유사한 것으로 감정되었음을 알 수 있다. 그렇다면 원고의 ◇◇◇◇ 프로그램은 설령 소외 2 회사의 ☆☆☆☆☆☆☆☆ 프로그램을 다소 이용하였다 하더라도 이와 실질적인 유사성이 없는 별개의 독립적인 새로운 프로그램이 되었다고 봄이 상당하다.

한편 기록에 비추어 살펴보면, 소외 3 회사의 ◎◎마트에서 현재 사용되고 있는 유통관리 프로그램(이하 ‘▷▷▷▷ 프로그램’이라 한다)은 원고가 소외 2 회사의 ☆☆☆☆☆☆☆☆ 프로그램을 기초로 개작한 2차적 프로그램에 해당할지언정 이를 가리켜 ☆☆☆☆☆☆☆☆ 프로그램과 동일한 프로그램이라 볼 수는 없으므로, 제1심법원의 촉탁에 의한 감정인인 한국데이터베이스진흥센터가 ▷▷▷▷ 프로그램과 원고의 ◇◇◇◇ 프로그램을 대상으로 실시한 데이터베이스 스키마 유사도 감정 결과는 그 감정방법의 적정성은 차치하고라도 위와 같이 ☆☆☆☆☆☆☆☆ 프로그램 자체와 ◇◇◇◇ 프로그램을 대상으로 실시한 유사도 감정 결과에 기초한 ◇◇◇◇ 프로그램의 창작성 판단에 장애가 되지 않는다.

The judgment of the court below to the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to the determination of creativity of programs, as alleged in the grounds

(2) Whether the program that was actually supplied and the program that was restored is identical to that of the ▽▽▽△ program

Examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts based on the adopted evidence, and judged that the distribution management program produced and supplied by the defendant company under a subcontract for the development of SI by the non-party 5 company from the non-party 4 company was identical with or partly modified to the restored ▽▽ program, which was restored from the files deleted from the Nowon-North Korea returned by the defendant 4, and thus, seems to have been substantially identical to this. In so doing, contrary to the allegations in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against the logical and empirical rules.

(3) Whether there is a substantial similarity between the △△△△ program and the ▽▽△ program restored

According to the reasoning of the judgment below, the court below recognized the fact that the △△△△ program, based on the restored △△ program, was appraised by 99.78% and 88.24% of the restored △△△△ program as identical and similar, based on the result of comparison of the similarity between the △△△△ program that was restored by the Computer Program Protection Committee and the Plaintiff’s △△△△△ program, and judged that the restored △△△ program was substantially similar to the Plaintiff’s △△△ program. In light of

한편 앞서 살핀 바와 같이 원고의 ◇◇◇◇ 프로그램은 소외 2 회사의 ☆☆☆☆☆☆☆☆ 프로그램과 실질적 유사성이 없는 별개의 프로그램이므로, ◇◇◇◇ 프로그램이 ☆☆☆☆☆☆☆☆ 프로그램과 실질적 유사성이 유지되는 2차적 프로그램에 해당함을 전제로 복원된 ▽▽▽ 프로그램과 ◇◇◇◇ 프로그램 사이의 실질적 유사성 여부를 판단함에 있어서는 ◇◇◇◇ 프로그램 중 ☆☆☆☆☆☆☆☆ 프로그램에 새롭게 부가한 창작적인 표현형식에 해당하는 것만을 가지고 대비하여야 한다는 상고이유의 주장은 받아들일 수 없다.

(4) Whether Defendant 3 is liable for joint tort

Examining the reasoning of the judgment below in light of the records, the court below recognized the fact that Defendant 3 participated in the development of the ▽▽▽▽△ program restored with Defendant 2 and 4, and held that Defendant 3 was liable to compensate the Plaintiff for damages incurred therefrom, as the restored △△△ program infringed on the right to open the pro rata program. In so doing, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

B. As to the part of the claim for damages arising from the infringement of the program copyright, the part of the Dogsung Program for Single Store

Defendant Company, Defendant 2, Defendant 3, and Defendant 4 appealed only on the part against the said Defendants among the judgment below. The lower court dismissed the part regarding the △△ Program for Private Store among the claims for damages arising from the Plaintiff’s infringement of the Plaintiff’s program copyright, and thus, even if the said Defendants are dissatisfied with the Plaintiff’s claim that won the entire case, the said Defendants cannot be deemed the grounds for appeal

3. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff concerning the ○○○ program is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeals by the plaintiff and all appeals by the defendant company, defendant 2, 3, and 4 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)