Requirements to be recognized as a “second-class copyrighted work” under Article 4(3) of the Addenda to the Copyright Act (amended by December 6, 1995) that digitized a sound recording by using the techniques of digital sampling.

In order to be recognized as a derivative work of a foreigner’s work under Article 4(3) of the Addenda of the Copyright Act (amended by Act No. 5105 of Dec. 6, 1995) as an original work, a new creativity should be added by making it the basis of the original work to the extent that it can be a new work under social norms. On the other hand, Article 2 of the Copyright Act (amended by Act No. 3916 of Dec. 31, 1986) of the same Act provides that a phonogram as one of the copyrighted works, and thus, a derivative work can be created based on the sound records of foreigners within the Republic of Korea governed by the same Act. However, in order to be recognized as a derivative work, digitalization of the sound recording by using the techniques of digital sampling is insufficient to the extent that it is substantially close to the real purport by removing the sound recording in the Arabic method, etc., and it should be added to an independent expression or addition.

Article 5(1) of the Copyright Act, Article 4(3) of the Addenda to the Copyright Act (amended by Act No. 3916 of December 6, 1995), Article 2 of the former Copyright Act (amended by Act No. 3916 of December 31, 1986)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff

Defendant (Law Firm Yang & Yang, Attorneys Choi Jong-hwan et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2002Na46562 delivered on June 24, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In order to be recognized as a derivative work of a foreigner’s work under Article 4(3) of the Addenda of the Copyright Act (amended by Act No. 5105 of Dec. 6, 1995) as an original work, a new creative work should be added by making modification, increase, or decrease to the extent that it can be a new work under social norms (see Supreme Court Decisions 9Do863, Jan. 25, 2002; 2004Da18736, Jul. 8, 2004). Meanwhile, Article 2 of the former Copyright Act (amended by Act No. 3916, Dec. 31, 1986) provides that a sound recording as one of the copyrighted works, and thus, it is possible to create a derivative work based on a foreigner’s indoor sound recording subject to the above Act. However, in order to recognize it as a new copyrighted work by using an independent digital sound recording method to the extent that it is short to recognize it as a new copyrighted work by making use of an original sound recording method.

In light of the above legal principles and records, two copies of music CDs reproduced by the Plaintiff and sold through customers (hereinafter “instant CDs”) at issue of infringement of author’s property rights among the music CD sets reproduced by the Plaintiff were modified, increased, and decreased to the extent that they could create a new work by social norms, as alleged by the Plaintiff, and the instant work cannot be seen as a work’s use of a copyrighted work, as long as possible, since the Plaintiff’s use of a copyrighted work cannot be seen as the instant copyrighted work, even if the music reproduction time was somewhat changed as a result of the above work, as the Plaintiff’s use of a copyrighted work cannot be seen as the instant copyrighted work.

2. Regarding ground of appeal No. 2

In light of the records, the plaintiff knew that a large number of CDs, including the CDs of this case, were created by digital sampling with a record recorded by his phonephone company, among the CDs he sold, and therefore, when selling the CDs, he himself was entitled to copyright of his phonephone (the original rights are neighboring rights. However, as seen above, Article 2 of the former Copyright Act, which was amended by Act No. 3916 of Dec. 31, 1986, was defined as one of the copyrighted works, and Article 2 (2) of the Addenda of the former Copyright Act provides that sound records are protected by neighboring rights, and Article 61 of the former Copyright Act provides that the former provision is applied to sound records, so it is reasonable to regard the sound records as copyright. Accordingly, the court below's decision is justified and justified in rejecting the plaintiff's claim for damages against the plaintiff and the plaintiff's customer, who had exclusive right to reproduction and sale of the CDs, based on its stated reasoning.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)