The meaning of “reproduction and distribution” as referred to in Article 2 subparag. 24 of the Copyright Act, which is the definition of “publication” as a type of “publication” under the Copyright Act / Whether the act of reproducing and distributing a work constitutes publication of a work only when there is an “act of reproducing and distributing a work” (affirmative), and whether the reproduction of a work constitutes publication of a work (negative)

Article 137(1)1 of the Copyright Act provides that “a person who makes a work public under the real name or pseudonym of a person other than the author shall be subject to criminal punishment.” Article 2 Subparag. 25 of the Copyright Act provides that “a person who makes a work public” means to make a work open to the public by means of public performance, public transmission, display or other means and to publish the work.”

With respect to “publication” of a work, which is a type of publication, the Copyright Act was amended as follows. Article 8(1) of the former Copyright Act (wholly amended by Act No. 3916, Dec. 31, 1986; hereinafter “former Copyright Act”). The Copyright Act amended by Act No. 3916, Dec. 31, 1986 provides that “publication means reproduction and distribution of a work, etc. for demand of the general public (Article 2 subparag. 16)” (wholly amended by Act No. 8101, Dec. 28, 2006) provides that “The publication refers to reproduction and distribution of a work or sound to meet demand of the general public” (Article 2 subparag. 24 of the former Copyright Act). The same is also the current Copyright Act.

Here, the question is whether the meaning of “duplicating and distributing” refers to “duplicating and distributing” or “duplicating and distributing”.

The term “publication” means a prior expression that widely reveals the meaning of “publication” and “publication” of a work constitutes one type of publication under the Copyright Act. The mere reproduction of a work does not mean that a work is made public. Moreover, in using the word, it is the door-book that has the meaning of “abund” generally. Therefore, the term “duplicating and distributing” under the aforementioned provision may be interpreted as “an act of reproducing and distributing a work.” In addition, the term “publication” under the former Copyright Act is defined as “an act of reproducing and selling or distributing a work.” The term “publication” under the current Copyright Act is defined as “an act of reproducing and distributing a work,” and there is no reason to deem that the provision on the definition of “publication” under Article 8 of the former Copyright Act was amended for the purpose of defining other meaning. Meanwhile, penal provisions under the principle of no punishment without law should be interpreted and applied in accordance with the language and text, and it should not be interpreted as “an act of reproducing and distributing a work excessively unfavorable to the accused.” In the end, it should not be construed as “an act of reproducing and distributing a work.”

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 8(1) of the former Copyright Act (wholly amended by Act No. 3916, Dec. 31, 1986; see current Article 2 subparag. 24); Article 2 subparag. 16 (see current Article 2 subparag. 24); Article 2 subparag. 24, 25, and 137(1)1 of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006; see current Article 2 subparag. 24, 25, and 137(1)1 of the Copyright Act.

Defendant 1 and six others

Defendant 4 and one other and the prosecutor

Law Firm Gangnam & LLC et al.

Suwon District Court Decision 2017No1269 decided September 14, 2017

All appeals are dismissed.

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

1. Determination on Defendant 4 and Defendant 5’s grounds of appeal

A. On the grounds delineated below, the lower court convicted the above Defendants of obstruction of the performance of official duties by deceptive means among the facts charged in the instant case.

(1) On December 2009, the Defendants completed the “○○○○○○○○○○○” book (hereinafter “instant book”) indicated as the author’s author even though they were not the author, and submitted the research report as if they were his own author, to the person in charge of the faculty member evaluation of the relevant national university. Accordingly, the relevant national university’s faculty member evaluation duty was obstructed.

(2) Considering the fact that serious data have been submitted with regard to teachers’ occupational evaluation, it seems impossible for the person in charge to clarify the violation of the Copyright Act in the course of normal performance of duties. Therefore, it cannot be deemed that interference with teachers’ occupational evaluation was due to insufficient examination by the National University.

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the establishment of obstruction of performance of official duties by deceptive means, contrary to what is alleged in the grounds of appeal.

2. Judgment on the grounds of appeal by the prosecutor

A. Violation of the Copyright Act around March 10, 2012 and around September 10, 2013

(1) Of the facts charged in the instant case, the lower court acquitted the Defendant on the ground that there was no proof of crime on the following grounds as to the violation of the Copyright Act due to the publication of the first revised edition of the instant book around March 10, 2012 and the second revised edition around September 10, 2013.

(A) The Defendants stated that they were unaware of the publication at the time of the publication of the first and second revised editions of the instant book.

(B) The first and second amendments of the instant book are different from the first and second amendments of the instant book, and any other content was added to the instant book. In the first amendments of the instant book, Nonindicted Party 1 and Nonindicted Party 2 were added as joint authors in the instant book, and Nonindicted Party 2 were added as joint authors. The employees of the publishing company seem to have published the revised book regardless of the Defendants.

(C) The author may anticipate that if all already printed books are sold, additional books will be printed and published, but it is difficult to anticipate that the author will additionally indicate the co-author and issue additional books.

(D) Prior to the publication of the first and second revised editions of the instant book, there is no evidence to acknowledge that the Defendants consented to the publication of the Defendants by registering the Defendants as co-authors in the first and second revised editions of the instant book, or that such publication was acceptable.

(2) Examining the reasoning of the lower judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on the number of crimes and criminal intent under the Copyright Act, contrary to what is alleged in the grounds of appeal

B. Violation of the Copyright Act around September 20, 2015

(1) Article 137(1)1 of the Copyright Act provides that “a person who makes a work public under the real name or pseudonym of a person other than the author shall be subject to criminal punishment.” Article 2 Subparag. 25 of the Copyright Act provides that “a person who makes a work public by means of public performance, public transmission or display and by other means and publishes a work.”

With respect to “publication” of a work, which is a type of publication, the Copyright Act was amended as follows. Article 8(1) of the former Copyright Act (wholly amended by Act No. 3916, Dec. 31, 1986; hereinafter “former Copyright Act”). The Copyright Act amended by Act No. 3916, Dec. 31, 1986 provides that “publication means reproduction and distribution of a work, etc. for demand of the general public (Article 2 subparag. 16)” (wholly amended by Act No. 8101, Dec. 28, 2006) provides that “The publication refers to reproduction and distribution of a work or sound to meet demand of the general public” (Article 2 subparag. 24 of the former Copyright Act). The same is also the current Copyright Act.

Here, the question is whether the meaning of “duplicating and distributing” refers to “duplicating and distributing” or “duplicating and distributing”.

The term “publication” means a prior expression that widely reveals the meaning of “publication” and “publication” of a work constitutes one type of publication under the Copyright Act. The mere reproduction of a work does not mean that a work is made public. Moreover, in using the word, it is the door-book that has the meaning of “abund” generally. Therefore, the term “duplicating and distributing” under the aforementioned provision may be interpreted as “an act of reproducing and distributing a work.” In addition, the term “publication” under the former Copyright Act is defined as “an act of reproducing and selling or distributing a work.” The term “publication” under the current Copyright Act is defined as “an act of reproducing and distributing a work,” and there is no reason to deem that the provision on the definition of “publication” under Article 8 of the former Copyright Act was amended for the purpose of defining other meaning. Meanwhile, penal provisions under the principle of no punishment without law should be interpreted and applied in accordance with the language and text, and it should not be interpreted as “an act of reproducing and distributing a work excessively unfavorable to the accused.” In the end, it should not be construed as “an act of reproducing and distributing a work.”

(2) On September 20, 2015, among the facts charged in the instant case, the lower court upheld the first instance judgment convicting the Defendant on the ground that it was difficult to deem that there was an act of “disclosure”, which is the constituent element of the penal provision of the instant penal provision, for the following reasons. The reasons are as follows: (a) around September 20, 2015, the third revised edition of the instant book was printed, and immediately after the entry into the warehouse of the △△△△△△△△△△△△△△△△△△△△△, the third revised edition of the instant book was in the state of being seized from the prosecution and released to the public; and (b) it cannot be deemed that the third revised edition of

Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

3. Conclusion

The appeals by Defendant 4, Defendant 5, and the Prosecutor are all dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)