Plaintiff (Attorney Lee Dong-ho, Counsel for the plaintiff-appellant)

[Defendant-Appellee] U.S. Liban Museum Co., Ltd. (Law Firm 2007, Dec. 1, 19

3, 2003.6

Seoul District Court Decision 2001Gahap25783 Delivered on July 5, 2002

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The defendant shall pay to the plaintiff 3,24,397,779 won with 5% per annum from the day following the delivery day of the application for extension of the claim of this case until the sentencing day of this case, and 25% per annum from the next day to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged in full view of the descriptions of Gap's evidence 1 through 7, Gap's evidence 10 through 15, Gap's evidence 31, 33, 34, 56, 85, Gap's evidence 88 through 91, Gap's evidence 93-1, Eul's evidence 93-2 through 10, and the whole purport of the arguments in the testimony of the witness lecture of the party, and there is no counter-proof.

A. The Plaintiff is a person who was engaged in the manufacture and sale of the music records in the Republic of Korea with the trade name of “sourd”, and the Defendant acquired the right to exclusively and exclusively produce and sell the music records produced by the said company from the said company in the Republic of Korea, as a distribution business operator of the music records produced by Nonparty 1, Germany, a German company, Gaut Gmpon Gmpon mbH (hereinafter “Deuton Gmpon mbH”).

나. 그라모폰사는 헤르베르트 폰 카라얀(Herbert von Karajan, 이하 ‘카라얀’이라 한다)이 베를린 필하모닉(Berlin Philharmonic, 이하 ‘베를린 필’이라 한다)에서 처음 지휘를 시작한 1938년 경부터 1989. 7. 16. 사망하기 직전까지 지휘한 베를린 필 등의 연주실황을 녹음하여 음반을 제작, 판매하여 왔다.

C. Meanwhile, the non-party YMC company (hereinafter "YMC company") was a Japanese company, and the bar code and the open board tape published on October 1, 1978 (hereinafter "agreement for the Protection of Phonograms from Unauthorized Reproduction of Phonograms") from 1982 to 1986. It included a large number of fluences in the music records of the Macphone that recorded the musical instruments directed by the Kara in Myanmar.

D. Around June 1992, Non-party 1, the Plaintiff acquired a license from YMC company for the use in the Republic of Korea as above, and then obtained a license from the Minister of Culture and Sports for the reproduction of foreign sound records for 278 grains on January 13, 1994. On June 21, 1995, the Plaintiff granted a license for the reproduction of foreign sound records for 35 CDs that the Plaintiff voluntarily wreed to the Plaintiff.

E. The Plaintiff: (a) made CD 30 CDs (from 001 SB to WRC 030 SB) by requesting Nonparty SKS to produce them using the sound source that obtained the right to use, etc.; and (b) made them into 10, 20, and 30 units sets; and (c) sold 38 items of 71 items of e.g., 30 items of 71 items of e.g., e., e., “Kamar SN, etc. at low prices” after making them into 10, 20, and 30 items of e.g., e., “Kamar-mar SN”.

F. Meanwhile, Korea joined the “Agreement on Trade-Related Intellectual Property Rights” (hereinafter “TRIPs Agreement”) to protect foreigners’ neighboring rights in the same way as those of the nationals’ neighboring rights, and the said agreement entered into force on January 1, 1995, and accordingly, the Copyright Act was amended and the said amended Act came into force from July 1, 1996, and the records, etc. produced by foreigners who were in a state of free use in the Republic of Korea were protected under the Copyright Act.

G. Around September 1996, his phonephone selected three CDs from among the CD sets produced by the Plaintiff on a random basis, and as a result of the investigation, he determined that “RAVEL, BOOO” of the WRC 010 SB reproduced the sound records on the blon’s blon’s blon’s blon’s blon’s blon’s blon’s blon’s blon.

H. On June 5, 1997, the defendant (the trade name at the time was referred to as "sigram corporation") held a famous raphone, including his luphonephone, and the defendant is entrusted to the defendant with the sale of music records and the right of reproduction, etc. on behalf of the defendant. Since the Copyright Act is amended and the foreigner's neighboring rights are prohibited from unauthorized reproduction and sale of music records, etc. protected and managed by the defendant, the defendant's act of reproducing and selling the music records, etc. is prohibited. In particular, the notice sent to non-siphone corporation, stating that the plaintiff's CD, advertising, is considered as infringing the defendant's right of reproduction and sale of music records, etc.

I. On July 8 of the same year, the Defendant sent to Korea-SN Co., Ltd. a written notification stating that the Plaintiff’s CD is deemed the same as the illegal sound records reproductions sold through the existing telecommunications network among the creative goods of the said company.

B. On July 15 of the same year, the Plaintiff and the Plaintiff’s CD business owner were granted a license to the Plaintiff through legitimate procedures as the Korean version of the YMC company on July 15, 2007, after negotiations on the continuous sales, etc. of the Defendant and the Plaintiff’s CD. The Plaintiff sent a notice to the Plaintiff on July 15, 2007, stating that the Plaintiff would be subject to a grace period of three months for business adjustment even in cases where illegality is proved.

(k) On the 21st of the same month, the Rophones did not grant the Plaintiff any right to YMC companies, and 12 of the CDAs sold by the Plaintiff (WRC 001 SB, WRC 002 SB, WRC 004 SB, WRC 005 SB, WRC 006 SB, WRC 007 SB, WRC 009 SB, WRC 009 SB, WRC 012 SB, WRC 012 SB, WRC 013 SB, WRC 020 SB, WRC 021B, WRC 027 SB) sent facsimiles to the effect that there is a reason to believe that the Rophone’s music records were reproduced.

(l) On December 11, 1998, Giphone filed an application against the Plaintiff for provisional injunction against selling sound records on the CD five CDs listed in the [Attachment List] among the Plaintiff’s CDs with Suwon District Court 97Kahap8305, and received a provisional injunction from the said court on August 7, 1998.

2. Determination

A. The parties' assertion

(1) It is true that the Plaintiff’s CD contains the Plaintiff’s leadership, but the Defendant does not have the right to exercise the Plaintiff’s right as a performer of Chicago, and the Plaintiff’s performance and the sound recording of the performance are used as a sound source for free use due to the lapse of the protection period, etc. Therefore, it does not infringe the Plaintiff’s neighboring rights, and even if a part of the performance and the sound recording is made based on the performance and the sound recording within the protection period, it does not infringe the Plaintiff’s neighboring rights, and even if it is made based on the performance and the sound recording, it may continue to be used pursuant to Article 4(3) of the Addenda to the Copyright Act. Nevertheless, the Defendant sent to the Plaintiff’s customer a false notice that the Plaintiff’s CD is infringing on the Plaintiff’s neighboring rights, thereby impairing the Plaintiff’s credit and impairing the Plaintiff’s business operation. Therefore, the Defendant is liable to compensate for damages therefrom.

(2) As to this, the Defendant has the right to exercise neighboring rights of Malophones and Myanmar in Korea. Under the amended Copyright Act, effective July 1, 1996, the neighboring rights of Malophones and Malophones are retroactively protected. The Plaintiff’s reproduction and sale of music records produced by recording Malophones and Malophones, and infringed neighboring rights of Malophones and Myanmar. As such, the Defendant’s delivery of the above notification did not constitute tort as part of the lawful exercise of rights.

B. Whether the Defendant has the right to exercise neighboring rights of his/her philophonephones and Myanmar

(1) The Defendant, to the Plaintiff’s trader, held a famous raphone, including his phonephone, and entrusted the Defendant with the sale of music records and the right of reproduction, etc. for the performance of Myanmar. The Defendant sent a notice to the effect that all citizens and criminal procedures would take place in the event of selling or distributing illegal music records that infringe on neighboring rights of his raphonephones and Kara Myanmars, and that the notice sent by a certain company would infringe on the Plaintiff’s neighboring rights of his raphones and Myanmar. As such, the fact that the notice sent by the Plaintiff appears to have been recognized as above, the Defendant’s sending of such notice is recognized as infringing on the Plaintiff’s CDs’ neighboring rights of his raphones and Myanmar. Therefore, in order to determine whether the Defendant’s sending of the above notice constitutes a tort, the Defendant’s right to neighboring rights of his

(A) The Defendant recognized that he acquired the right to exclusively, exclusively, and exclusively manufacture and sell the above company’s music records from his sponsor. Thus, the Defendant is entitled to demand the suspension of the infringement by subrogation of his sponsor in the Republic of Korea against a person who infringed the right as a phonogram producer.

(B) Next, as to whether the Defendant is entitled to exercise neighboring rights, the statement in the document No. B No. 8 is sufficient to acknowledge that the executor of the will of Chicago has an exclusive right to the sound records on which he had recorded the sound records in the direction of Myanmar 1, 2, and 9 times from 1975 to 197. Thus, it is insufficient to recognize that the Raphone or the Defendant was delegated by the Plaintiff to exercise neighboring rights to the Plaintiff’s performance in Myanmar, or that it was transferred by the Plaintiff, and there is no other evidence to support otherwise.

(2) As above, it is difficult to recognize that the Plaintiff had the right to exercise its neighboring rights against the Defendant, and the lower court will examine whether the Plaintiff infringed the neighboring rights as the producer of the Maliphone’s music record.

C. Whether the Plaintiff’s infringement of neighboring rights as a music record producer of the Gaphonephones

(1) Protection of the rights of a foreign phonogram producer under the Korean Copyright Act

(A) Copyright Act of 1957

The Copyright Act enacted by Act No. 432 of January 28, 1957 (hereinafter “the Copyright Act of 1957”) stipulates that a foreigner’s work shall be protected under the said Act only by the foreigner who first published the work in Korea unless otherwise provided for in the treaty (proviso of Article 46). However, during the enforcement period of the said Act, the Republic of Korea did not have acceded to any treaty regarding the protection of foreigner’s work. Thus, a foreigner’s work was protected only when it was first published in Korea (the foregoing Act does not use a separate concept as neighboring rights, but, in Article 2, the sound record producer’s right was included in the copyrighted work and protected as a kind of copyright).

(B) The Copyright Act of 1987 and the Sound Records Convention

After that, the Copyright Act, which was wholly amended by Act No. 3916 of Dec. 31, 1986 and came into force from July 1, 1987 (hereinafter “1987 Copyright Act”), has the protection as neighboring rights only to the sound records first fixed in the Republic of Korea (Article 61 subparagraph 2 (b)) and the “music records (Article 61 subparagraph 2 (c)) protected under the treaties signed by the Republic of Korea or concluded by the Republic of Korea. On the other hand, the Republic of Korea signed the Convention for the Protection of Phonograms from Unauthorized Reproduction of the sound records (hereinafter “the Convention”) on Oct. 10, 1987, which became effective, and became effective retroactively. Accordingly, the foreigner’s neighboring rights to the sound records have been protected only to the sound records first fixed in the Republic of Korea and after Oct. 10, 1987.

(C) the current Copyright Act and the TRIPS Agreement;

1) The Copyright Act amended by Act No. 5015 of Dec. 6, 1995 and enforced from July 1, 1996 (hereinafter “former Copyright Act”) provides that Article 18 of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter “Berne Convention”) shall apply mutatis mutandis to the records produced by foreigners as neighboring rights to “the first fixed music record (Article 61 subparag. 2(c)) in the Contracting State protected by a accession or an agreement entered into by the Republic of Korea.” Meanwhile, Korea entered into the TRIPS Agreement. Article 14 of the TRIPS Agreement provides that the so-called neighboring rights of performers, producers of music records, and broadcasting business entities (Article 1, 2, and (3) shall be recognized, and Article 18 of the Berne Convention shall apply mutatis mutandis to the records produced by foreigners (hereinafter “Berne Convention”). Article 18 of the Berne Convention shall be applied mutatis mutandis to the existing domestic law of the Contracting State or any other special method to protect copyrighted works (Article 16(1) of the Berne Convention).6).

2) Therefore, if the foreigner's neighboring rights are parties to the TRIPS Agreement and the protection period under the Copyright Act of the Republic of Korea has not expired, the foreigner's neighboring rights are retroactively protected under the current Copyright Act even if they are not related to the records recorded after October 10, 1987 (the part protected by the entry into force of the phonogram agreement), or those recorded for the first time in the Republic of Korea (the part protected by the Copyright Act of 1957). Germany is a party to the TRIPS Agreement, and all of the records of Maphonephones, a German company in question, are recorded before October 10, 1987 and published for the first time in Germany, and thus the right of Maphones as the producer of each of the above records is protected under the current Copyright Act.

(2) The protection period of neighboring rights of the sponsor.

(A) the protection period that would have been recognized if protected in the Republic of Korea;

Article 3 of the Addenda to the current Copyright Act provides that "the copyright of a foreigner's work and a phonogram newly protected under Articles 3 (1) and 61, which has been enforced prior to the enforcement of this Act (hereinafter referred to as "recovered work, etc.") shall continue to exist during the remainder of the protection period which would have been recognized if the works, etc. were protected in the Republic of Korea." As seen earlier, the phonogram of a raphonephone company at issue in this case shall be deemed to fall under the restoration work, etc. under Article 3 of the Addenda to the current Copyright Act as a foreigner's work newly protected under the current Copyright Act. Thus, the right as a phonogram producer shall continue to exist during the remainder of the protection period which would have been protected in the Republic of Korea."

(B) The protection period of the rights of producers of phonograms under the Korean Copyright Act

1) The Copyright Act of 1957 provides that a copyright shall continue to exist for a period of thirty (30) years after the survival of an author, and that the copyright of a work under a title of organization shall continue to exist for thirty (30) years after the date of publication or public performance (Article 33). Meanwhile, in calculating the period of copyright, the copyright shall be calculated from the year following the date of publication or public performance of the author’s death or his work.

2) Under the Copyright Act of 1987, the term of protection is set as 20 years counting from the year following the year when the music was first fixed on the music record (Article 70). Under the Addenda, the term of protection is set as the musical work under the previous provision of Article 2 of the Copyright Act of 1957 (Article 2 (2) 1). The term of protection under the previous provision of the Copyright Act of 1987 is based on the previous provision of the Copyright Act (Article 2 (2) 1). If the term of protection under the previous provision of the copyrighted work is longer than the term of protection under the above Act of July 1, 1987, when the term of protection under the previous provision of the copyrighted work is longer than the term of protection under the above Act (Articles 3 (1) and 2 (1) of the Copyright Act), the term of protection under the Copyright Act of the music record is still applied to the term of protection under the Copyright Act of the music record producer of 1957.

3) The Copyright Act amended by Act No. 4717 of Jan. 7, 1994 and enforced on July 1, 1994 (hereinafter “194 Copyright Act”) extended the protection period of neighboring rights of producers to 50 years starting from the year following the date when the producer first fixed the term of protection of neighboring rights to phonograms (Article 70). However, Article 3 of the Addenda of the Copyright Act provides that “the protection period of neighboring rights that occurred before this Act enters into force shall be governed by the previous provisions,” and the protection period under the above Act is applied only to the rights of producers of sound records recorded after July 1, 1994.

4) In full view of the above provisions regarding the protection period of the rights of producers of phonograms under the current Copyright Act, the rights to phonograms made public before June 30, 1987 shall be protected from the date following the death of the author, as prescribed by the Copyright Act in 1957, to 30 years, respectively from the following year from the time of publication in the case of works of organization, and from the time of publication in the case of works of organization, the neighboring rights to phonograms made public after July 1, 1987 to June 30, 1994 shall be protected from the following year from the time of fixing the first sound to the sound, and the neighboring rights to phonograms made public after July 1, 1994 shall be protected from the date of the first fixing the sound to the sound.

(C) Meanwhile, as seen earlier, the restoration works, etc. under the current Copyright Act shall continue to continue to exist “the remainder of the protection period which would have been recognized if they were protected in the Republic of Korea” under Article 3 of the Addenda to the Copyright Act, and the music records of Raphonephones at issue in this case are all restored works, etc. which were made public before June 30, 1987, and their rights as producers of Raphones are related to the copyrighted works under the name of an organization under the Copyright Act of 1957, and thus, they shall be protected only from the next year after the publication of the music records

(3) Whether the Plaintiff’s neighboring rights were infringed on

(A) The Defendant asserts that the CD 5 recorded in the Plaintiff’s CD set forth in the [Attachment 5] CD No. 5] recorded and published on the date indicated in the column for “the Defendant’s assertion” as indicated below was an infringement of the Plaintiff’s right as a producer of the Ramophone. Accordingly, the Plaintiff’s creation of each CD as indicated in [Attachment 2 and 5] made in the [Attachment 2] No. 5] was true, but as to the remainder 3, the Plaintiff’s creation was made with a lomophone’s sound recording and publication on the date indicated in the column for “the Plaintiff’s assertion-to-be sound recording” as indicated below, and the protection period of each sound record was already expired.

In the case of the Plaintiff’s CDs claimed in the main text, the Plaintiff’s CDs claimed in the Defendant, shall be recorded on October 19, 1976, and published on August 15, 1962, and published on October 13, 1966, and published on July 1, 1967, paragraph (3) of the same Article on July 1, 1967, respectively.

(B) Each CD Nos. 4 through 7 was written in comparison with the Plaintiff’s CD set of the Plaintiff’s CD set of the Plaintiff’s CD at his professional listening room, and each CD listed in the separate sheet was merely the reproduction of the sound recorded in the Defendant’s “record subject to the Defendant’s assertion” as a result of comparison with the sound recorded in the Plaintiff’s CD set of its own professional listening room. Meanwhile, according to each of the statements in Gap’s evidence Nos. 56 and Gap’s evidence Nos. 57 through 59-1 through 3, the sound sources, which form the basis of each CD as indicated in the separate sheet Nos. 1, 3, and 4, were recorded in the YMC’s set of the set of “MMC’s set of the above list,” and thus, it cannot be readily concluded that each of the above CD’s set of the CD’s set of No. 370 to 37,000 prior to the enforcement of the current Copyright Act.

However, the Plaintiff also acknowledges that the CDs listed in the separate sheet Nos. 2 and 5 of the list are using the sound source in which they were recorded and published on the date recorded in the column for “for the Defendant’s assertion” as indicated in the above list. Thus, each of the above sound records by his sponsors was protected under the current Copyright Act because it is apparent that the period of protection (30 years from the following year) has not elapsed when the Defendant sent a notice to Non-CCCC Card Co., Ltd., and thus, the Plaintiff infringed upon the rights of his sponsor’s producer as a music producer with respect to the CDs listed in the above Chapter 2.

(C) Whether the use of a derivative work is permissible or not

The Plaintiff asserts that the sound sources created by YMC’s divers of the above divers’ sound records constitute secondary copyrighted works, and that the Plaintiff’s divers’ use of the divers’ divers’ divers’ divers’ hivers’ hivers’ hivers’ hivers’ hivers’ hivers’ hivers’ hivers’ hives hivers’ hivers’ hives hivers’ hivers’ hives hivers hivers’ hives hivers’ hivers’ hivers’ hives hivers’ hives hivers’ hives hivers’ hives hivers’ hives hivers’ hives hivers’ hives hivers’ hives hives hivers’ hives hives hives h.

D. Whether tort was established

(1) As seen earlier, at least two of the Plaintiff’s 30 CDs infringed on the Plaintiff’s rights as a producer of his phonephone, and the Defendant, as a seller of his phonephone’s music records, has the right to seek suspension of infringement on the Plaintiff’s right by subrogation of his phonephone. However, even if the Defendant did not have the right to exercise neighboring rights to the Plaintiff’s performance, it is deemed that the Plaintiff’s CD’s neighboring rights were infringed on the Plaintiff’s business entity, and thus, it cannot be said that the Defendant sent the Plaintiff’s notice to the effect that the Plaintiff would take legal measures if the manufacture or sale was not discontinued, it was conducted as part of a legitimate exercise of rights.

(2) As to this issue, the Plaintiff’s infringement of neighboring rights is nothing more than a part of the Plaintiff’s CDs. However, the Defendant did not specify the Plaintiff’s infringement of neighboring rights, and the Plaintiff’s entire business was impossible by sending the Plaintiff’s certification of contents as if the Plaintiff’s infringement of neighboring rights. As such, the Plaintiff’s assertion that this constitutes a tort, and thus, the Plaintiff’s neighboring rights holder may claim for the prevention of infringement or the security of compensation for damages against the person who is likely to infringe on rights. It is naturally allowed to give written warning that the infringement of neighboring rights would be suspended prior to the filing of the lawsuit against infringement of neighboring rights’ infringement or infringement of neighboring rights’ infringement. In this case, it cannot be deemed that the Defendant had a duty to specifically specify the subject of neighboring rights’ infringement or infringement of neighboring rights’ infringement. Meanwhile, in this case, the Defendant appears to have continued to sell the Plaintiff’s notice of infringement of neighboring rights’s infringement of the Plaintiff’s neighboring rights’s use of the CD, as it appears that it was difficult for each of the Defendant’s sales of the CDs advertising and the instant content.

3. Conclusion

Therefore, the plaintiff's claim of this case is groundless without any need to decide on other issues, and it shall be dismissed. The judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Yang Dong-won (Presiding Judge)