[1] Whether the service provided by the Internet music site, such as setting, listening in advance, MP3 file download, telephone connection, cell phone display, etc. constitutes “distribution” under Article 2 subparag. 15 of the former Copyright Act (negative)

[2] Whether a person who operated a site linked to a link may be held liable for infringement of the right of reproduction and the right of transmission by the link (negative)

[3] In a case where an Internet music site operator fails to indicate the name of the author or the author in a proper way on the web page for musical works or on the screen, etc. of various creative or original services, whether the infringement of the author’s right to indicate his/her name (affirmative)

[4] In a case where an Internet music site operator without permission cutting, extracting, converting, storing another's musical work without permission and provides Internet users with sound source service, such as telephone connection sound, cell phone display, cell phone display, whether it infringes the author's right of integrity (affirmative)

[5] In determining infringement of the right of integrity, whether it is necessary to impair the author's reputation and reputation and other personal values (negative)

[6] The meaning of "the extent deemed unavoidable in light of the nature, purpose and form of use of a work" under Article 13 (2) 3 of the former Copyright Act

[7] The measures to be taken by the music site operator, who is a service provider, in case where it is necessary to extract part of the original grains due to the nature of the business or service, to hear in advance and use them, to provide the telephone connection sound, mobile phone display service

[1] The distribution under Article 2 subparagraph 15 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) refers to the transfer or lease of the original or reproduction of a work to the public with or without payment. The concept of "distribution" refers to the transfer or lease of the work in a tangible form, not intangible goods, in comparison with the concept of "transmission". However, services such as string, hearing in advance, MP3 file download, telephone connection, cell phone display, etc. are services such as string, listening to users by transmitting the compressed files of musical works stored in a music site server through a string or voice communication line, etc. It refers to the services that enable users to hear or download them with personal computers or mobile phones, etc. This refers to the transfer or lease of works in the form of fluids, and thus, it cannot be viewed as the transfer or distribution of reproduction of works in the form of fluids, regardless of whether it constitutes a "distribution of music site" under Article 29 of the Copyright Act.

[2] "Link" means a link system through which a specific individual (A) indicates the address of a web site operated and managed by another web site operator (C) on his/her own web page in the form of Hink, and a third party who connects A's web site or B's web site is immediately connected to C's web site, or a music file, etc. stored in C's server is transmitted. Here, the direct principal agent at which the right of reproduction and the right of transmission are infringed by the link falls under the above A and B, and as a matter of principle, for C which is merely operated by the link site, the direct principal agent at which the right of reproduction and the right of transmission are infringed by the link cannot be held liable for infringement of the right of reproduction and the right of transmission by the link.

[3] The purpose of protecting the author’s right to indicate the author’s name is to indicate the author’s name in an appropriate way regardless of the Internet user’s awareness. As such, the Internet user’s right to indicate the author’s name may not affect the infringement of the right to indicate the author’s name in the circumstances, such as whether it is unlikely for the Internet user to recognize the author’s author’s musical work as being other than the author’s non-author’s. In addition, if the operator of a music site indicates the number and the name of the author’s name on the web page or various creative or screen of music services related to musical works but fails to indicate the author’s name in an appropriate way, it constitutes infringement of the author

[4] The purport of Article 13(1) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) that protects the author’s right to preserve identity is that only the author with the right to maintain identity is entitled to make an addition, deletion, cutting, opening, etc. of the content, form, and title of the work beyond simply correcting / scam or correcting the parts that do not comply with the original law to the extent that it does not impair the identity of the work. In principle, the third party cannot make such an alteration against his/her will without the consent of the author. Therefore, the operator of the music site provides a listener service prior to the cutting and transmitting part of the original rice without the consent of the author, or partially extracting, converting, storing, and then providing the buyer with telephone connection and mobile phone display service, etc. constitutes infringement on the right to maintain identity, barring special circumstances.

[5] Although the right of integrity is a kind of author’s moral right, it cannot be denied to the effect that it is a provision for the protection of author’s moral interests, Article 16 of the former Copyright Act (amended by Act No. 3916 of Dec. 31, 1986) provides that “The author shall have the right to object to the person who has harmed his reputation and sexual reputation by making the content or title of the work or by making the modification of the content or title of the work even after the transfer of the right,” unlike the requirement for the infringement of the right of integrity, the former Copyright Act of the Republic of Korea established that the damage of specific moral values, such as the author’s honor and sexual network, does not meet the requirement for infringement of the right of integrity. Thus, as long as the alteration was made without the consent of the author who actually infringed on the identity of the work, such alteration constitutes an infringement of the right of integrity, and thus, it constitutes an infringement of the author’s right of integrity.

[6] Under Article 13 (2) 3 of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006), the term “incompetence” means a case where it is inevitable to alter and exploit a work due to the technical limitation in the use of the work or the limit of the performer’s ability, etc., and it is not necessary to guarantee the author’s objection to the form of the use, or it is inevitable to restrict the author’s right to raise objection due to the need for significant public interest. Therefore, it cannot be deemed that a work user without permission uses a part of the work at will without the consent of the author for the mere reason of the necessity of transaction in the actual transaction.

[7] In a case where it is deemed necessary to extract and use part of the original rice due to the nature of the business or service provided in advance by the music site operator on the Internet, the music site operator, a service provider, must obtain consent to ① to set up a certain extent of time of hearing service to be provided in advance from the author in advance to potential buyers, ② to provide a sample sample in the case of recycling part of the time of hearing service from the author, ② to extract the music file on the telephone connection sound, cellphone, and to what extent the music part to be recorded is extracted from the music file of the mobile phone, and to what extent the length should be specified.

[1] Article 2 subparagraph 15 (see current Article 2 subparagraph 23) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [2] Article 16 (see current Article 16) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [3] Article 12 (see current Article 12) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [4] Article 13 (1) (see current Article 13 (1)) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [5] Article 13 (2) of the former Copyright Act (amended by Act No. 8102 of Dec. 13, 2006) / [3] Article 13 (2) (see current Article 3013 (2) of the former Copyright Act) of the Copyright Act (amended by Act)

Plaintiff (Law Firm Doksan, Attorneys Park Jong-hoon et al., Counsel for plaintiff-appellant)

Defendant 1 and two others (Attorney Kim Yong-woo, Counsel for the defendant-appellant)

Defendant 4 Co., Ltd. (Law Firm Shin & Yang, Attorney Lee Young-chul, Counsel for defendant-appellant)

Seoul Central District Court Decision 2006Gahap26606 Decided June 21, 2007

July 22, 2008

1. Of the judgment of the court of first instance, the part against the Defendants corresponding to the money ordered to be paid below shall be revoked.

The Plaintiff shall pay to Defendant 1, 2, and 3, respectively, KRW 1,000,00 for Defendant 4, KRW 3,000 for Defendant 4, and KRW 5% per annum from April 7, 2006 to September 23, 2008, and KRW 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal against the defendants and the incidental appeal against defendant 4 corporation are dismissed, respectively.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendants, respectively.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

1. Purport of claim

Defendant 1 Co., Ltd. (hereinafter “Defendant 1”) paid to the Plaintiff 50 million won, Defendant 2 Co., Ltd. (hereinafter “Defendant 2”) 30 million won, Defendant 3 Co., Ltd. (hereinafter “Defendant 3”) 10 million won, Defendant 4 Co., Ltd. (hereinafter “Defendant 4”) with 40 million won and 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

The part of the first instance judgment against the plaintiff shall be revoked. Paragraph (1) shall also apply.

3. Purport of incidental appeal;

The part against Defendant 4 in the judgment of the first instance is revoked, and the plaintiff's claim against Defendant 4 corresponding to that part is dismissed.

1. Basic facts

A. Termination of the Plaintiff’s copyright and trust contract

The Plaintiff is the author and the copyright holder who works or plays a musical work (hereinafter referred to as “instant musical work”) following the public factor.

(1) ○○: Plaintiff’s rice

(2) △△: Plaintiff’s rice and author

(3) △△: Plaintiff Crops and writers

(4) Wide-gu Seoul Special Metropolitan City: Plaintiff Green City;

The Plaintiff entered into a copyright trust agreement with the Korea Music Copyright Association (hereinafter referred to as the “Korea Music Copyright Association”) on the instant musical work, and notified the Nonparty Association of the termination of the contract on April 6, 2004.

B. Provision of the defendants' music site and music source service

The Defendants, as indicated in the attached music service mark, directly operate the music site as indicated in the attached Form, or maintain and implement contractual relations with the music site of another company, and Defendant 1, 2, and 4 from April 6, 2004, which was the base date for the Plaintiff’s assertion, and Defendant 3, from June 20, 2005, did not obtain permission to use the instant copyrighted musical work from the Plaintiff, the copyright holder, for converting the instant copyrighted musical work into the digital compressed file (af, box, mf, etc.) and stored the instant copyrighted musical work in the relevant server of the music site operated by them, and provided the Internet users with the following music services:

(1) Total listener: A service providing Internet users with music for a fee by a method of reproducing digital compressed files with respect to musical works in real time on the Internet without downloading them.

(2) Prior hearing: A service which transmits approximately one minute to thirty seconds free of charge in the way of string and which provides Internet users with sampling.

(3) MP3 file download: A service allowing Internet users to download music files for a fee.

(4) Currency connection: A service that leads to the other person to some extracted parts of music instead of the call atmosphere where the other person makes a telephone on the cell phone owned by the buyer of the service through the network built by the mobile carrier.

(5) Mobile phone Belize: A service that enables the buyer of the service to hear some extracted parts of music selected and stored by him/her when he/she suffers from a telephone from his/her own mobile phone.

C. Plaintiff’s notification of suspension of copyright infringement

From May 19, 2005 to Defendant 1, from June 2, 2005 to Defendant 2, from February 2, 2005 to Defendant 3, from February 20, 2006 to Defendant 4, and from October 12, 2005 to Defendant 4, the Plaintiff notified the suspension of the Plaintiff’s copyright infringement due to the Defendants’ provision of sound source services.

[Reasons for Recognition: Evidence Nos. 1 through 8, 17, 22, 23, 33, 45, 47, 49, 61, 81 (including paper numbers; hereinafter the same shall apply), Evidence No. 5, 6, Evidence Nos. 2, B, 3, Evidence Nos. 1, 2, 4, Ra 10 and the purport of the whole pleadings]

2. The parties' assertion

A. The plaintiff's assertion

(1) The Defendants, without obtaining permission from the Plaintiff, a copyright holder, stored the instant copyrighted work in their server by converting it into digital compressed files, and then offered the users of the music site the music site with a string, listening in advance, MP3 file download, telephone connection, cell phone display, link, etc., thereby infringing the Plaintiff’s right of reproduction, transmission, and distribution.

(2) In posting the instant musical work at the web page of the music site, the Defendants infringed the Plaintiff’s right of attribution by failing to indicate the Plaintiff’s name, who is the author, as the author or the author, in an appropriate manner.

(3) The Defendants, in the provision of the hearing service in advance, cut the primary grain into approximately one minute unit and provided them to Internet users, or provided only a part of the primary grain in the provision of telephone connection sound and cell phone display service to Internet users by extracting and converting it, thereby infringing the Plaintiff’s right of integrity.

(4) The Defendants intentionally or negligently infringed the Plaintiff’s copyright as described in paragraphs (1) through (3) above, thereby causing damages equivalent to the amount stated in the purport of the claim to the Plaintiff. Thus, the Defendants are liable to compensate the Plaintiff for each of the aforementioned damages and damages for delay.

B. The defendants' assertion

(1) The Defendants’ act does not constitute infringement on the distribution right, and Defendants 2 and 4 are not responsible for infringement on the right of reproduction and the right of transmission in relation to Internet users’ posting a link on their personal tables, etc.

(2) The defendants' web page only has a limited space, and it does not intend to display the writers or writers of the music, and the "Gambling," which is opened by the character of the music in question, is voluntarily prepared by Internet users, not the operator of the music site, and even if this is not indicated, it does not constitute an act of the defendants, and thus, the defendants are not liable for the infringement of the right to indicate name.

(3) The Defendants’ act of cutting original grain at approximately one minute or one minute or 30 seconds in order to provide services, such as call connection sound, cell phone display, etc., or of extracting, converting or converting only a part of original grain, and providing it to Internet users can be deemed as unavoidable in light of fair practices in the digital sound source service industry, or in light of the nature of the work, purpose of use and form of use, etc., and such act does not impair the author’s reputation and reputation, and thus, the Defendants are not liable for infringement of the right of integrity.

(4) Defendant 1, 2, and 3 concluded a contract for lawful exploitation of copyrighted works with the non-party association, who was authorized to exploit copyrighted works under the instant trust agreement, and subsequently used the instant copyrighted work. Even if the Plaintiff terminated the instant trust agreement on April 6, 2004, the Plaintiff and the non-party association did not notify the Defendants of such termination, so long as the Plaintiff and the non-party association did not notify the Defendants thereof, it cannot be deemed that the said Defendants knew or could have known of such circumstances, and therefore, Defendant 1, 2, and 3 cannot be held liable for damages against the Plaintiff.

(5) Even if the Defendants’ liability for damages is established, the amount of damages to be paid by the Defendants shall be governed by the collection regulations of the non-party association ordinarily applicable to transactional reality with respect to the instant copyrighted musical work, and the amount of damages to be paid by the Defendants is extremely low that the amount of damages to be paid by the Defendants is less than 1/100 of the amount stated in the claims.

3. Whether the defendants' author's property rights were infringed

(a) Right of reproduction;

According to the above facts, in order to provide Internet users with services such as string, listening in advance, MP3 file downloading, telephone connection, mobile phone display, etc., Defendant 1, 2, and 4 from April 6, 2004, the base date of the Plaintiff’s assertion, and Defendant 3 from June 20, 2005, without obtaining permission to use the instant copyrighted musical work from the Plaintiff, the copyright holder, the copyright holder, for converting the instant copyrighted musical work into digital compressing files, and then fixed and stored the auxiliary storage device of the server (a device with a storage area that can immediately transmit stored data at the user’s request). Thus, the Defendants’ act constitutes infringement of the Plaintiff’s right of reproduction.

(b) Transmission right;

According to the above facts, the defendants converted the musical work of this case into digital compressed files and fixed and stored in the auxiliary storage device of the server so that users can receive the copyrighted musical work of this case according to individual choice of Internet users. In fact, upon individual request of Internet users, sent the digital compressed files of the copyrighted musical work of this case stored in the server via wired and wireless telecommunication lines to each user. Thus, the defendants' act constitutes infringement on the plaintiff's transmission right.

(c) franchises;

The distribution under Article 2 subparag. 15 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006; hereinafter the same) refers to the transfer or lease of the original or reproduction of a work to the public with or without payment. The concept of "distribution" refers to the transfer or lease of the work in a tangible form, not intangible goods, in comparison with the concept of "transmission". However, services such as string, prior hearing, MP3 file download, telephone connection, cell phone display, etc. are services such as string, listening to users by transmitting the compressed files of musical works stored in a music site server through a string or voice communication line, etc. It refers to the services that enable users to hear or download them with personal computers, mobile phones, etc. This refers to the distribution or lease of works in the form of fluids, and therefore, it cannot be viewed that the Defendants’ distribution or reproduction constitutes the distribution of works in the form of fluids, and therefore, it cannot be viewed as the Plaintiff’s distribution of services under Article 29 of the Copyright Act.

D. As to links, etc.

(1) The Plaintiff asserts that Defendant 2 and Defendant 4 infringed the Plaintiff’s right of reproduction and transmission by facilitating links to their music sites to the Internet users, thereby providing a string service on the instant copyrighted musical work to third parties who did not directly access their music sites.

The term "link" means an Internet connected system in which a specific individual (hereinafter referred to as "A") is allowed to transmit music files, etc. stored in the C's servers, or a specific site operator (hereinafter referred to as "B") indicates the address of the website operated and managed by another site operator (hereinafter referred to as "C") on his/her web page in the form of a hybrid (Wyperex, for example, "www.co.m.," the same shall apply). The third party who connects A' B's B's B's web site may immediately connect C's web site or transmit the music files, etc. stored in the C's server. In principle, the direct subject of the right of reproduction and the right of transmission by the link can not be held liable for the infringement of the right of reproduction by the link as a matter of principle.

However, even based on the Plaintiff’s assertion against Defendant 2 and 4, Defendant 2 and Defendant 4 are not the direct subject of the link, but the status of the operator of the link’s site where Internet users walked on the personal Blols, etc. In principle, Defendant 2 and 4 cannot be held liable for infringement of the right of reproduction and the right of transmission by the link.

(2) The Plaintiff asserts that Defendant 2 may not be exempted from the responsibility of infringing the right of reproduction and the right of transmission by link, since Defendant 2 provided an active technical support, such as providing tags (tags and Habex website automatically connects to the Internet server) to facilitate the link to the Internet users.

In light of the nature of the Internet with characteristics of live, open, promptness, etc., it cannot be readily concluded that an individual placed a link to a specific website on his/her own lives, or that an operator of a website promptly infringed another person’s right of reproduction or transmission right solely on the ground that he/she provided a tag that facilitates link to the Internet users. Furthermore, the sound source service that Defendant 2 and 4 ultimately provides through the link is a live service, such as a total hearing, hearing, etc., and as seen earlier, insofar as Defendant 2 and 4 are already liable for infringement on the provision of lives service, it is not reasonable to hold Defendant 2’s attitude related to the link at the preliminary or preliminary stage, which is merely a separate right of reproduction or a right of transmission infringement on the right of transmission. Thus, the Plaintiff’s above assertion is without merit.

(3) In addition, the Plaintiff asserts that services, such as “PC performance” and “communityphone,” which were revealed in the result of fact-finding with the Nonparty Association, are distinct from the string and MP3 download services, and that separate reproduction and transmission right infringement liability is recognized. However, the subject of the PC performance service is not directly related to the Defendants in that the operator of the place of business and the subject of the musicalphone service, which hold the relevant performance, are mobile communications companies, and there is no other evidence to acknowledge the Defendants’ liability for this part, and therefore, the Plaintiff’s assertion is without merit.

4. Whether the defendants' moral rights have been infringed

(a) Right to indicate name;

(1) In posting a list of musical works of this case on the web page of the music site in which the Defendants directly operated or participated by the Defendants in providing a music source service, the Defendants did not indicate the Plaintiff’s name as the author as the author in a proper way such as the creation produced on the screen of the web page or through a simple character process. In addition, in providing the Internet users with individual services by means of singinging or MP3 file downloading, etc., the Defendants did not indicate the Plaintiff’s name as the author in the course of providing such services, or in other ways such as the MP3 panel’s screen or other pictures that can be seen by the users in the course of playback of music, and thus, the Defendants’ act constitutes infringement on the Plaintiff’s right of attribution, barring special circumstances.

(2) As to this, the Defendants asserted that, even if they did not explicitly indicate the author or the artist of the instant musical work, Internet users are unlikely to recognize the author or creator of the instant musical work as other persons than the Plaintiff. In addition, they only have a limited space where the web page operated by the Defendants exists, and it is not reasonable to place a separate indication on the author or the artist in addition to the display of the author or the phonogram. Thus, the Defendants’ act constitutes an inevitable circumstance where the name of the author is not indicated in light of the nature of the copyrighted work, the purpose of use, and the form of use under the proviso of Article 12(2) of the former Copyright Act.

However, the purpose of protecting the author's right to indicate the author's name is to indicate the author's name in an appropriate way regardless of the Internet users' awareness, so it cannot affect the defendants' right to indicate the author's name under the circumstances such as whether the Internet users are unlikely to recognize the author's name of the instant copyrighted musical work as other persons than the plaintiff, and in addition, in light of the fact that the web page of the music site operated by the defendants is indicated in various ways such as the name of the author's name and the name of the producer's name, etc., the mere expression of the plaintiff's name is difficult in the space of the web page. Furthermore, the defendants' assertion is without merit.

(3) The Defendants asserted that the “Gambling,” which is created by inserting the music on the web page of the music site, is arbitrarily produced by Internet users, not the operator of the music site, and even if the author or the author did not indicate it, it does not constitute the Defendants’ act, and thus, the Defendants did not assume the responsibility for infringement of the right to indicate name.

However, the grounds for the Defendants’ liability for infringing the right to indicate name are that the Plaintiff’s name, the author of the music site, such as web page, various windows and screens in the course of providing the music services, is not indicated. Thus, the Defendants’ assertion to the effect that the Defendants are not responsible for the infringement of the right to indicate name is not well-grounded, while pointed out only the case of a family-based box box that is prepared by the Internet users.

(b) Right to maintain identity;

(1) Change of the musical work of this case (Article 13(1) of the former Copyright Act)

(A) the meaning of the right of integrity

Article 13(1) of the former Copyright Act provides that “The author shall have the right to maintain the identity of the content, form, and title of the work,” thereby guaranteeing the author’s right of integrity. Therefore, any addition, deletion, cutting, opening, etc. of the content, form, and title of the work beyond simply correcting the misunderstanding or the degree of correcting the portion that does not conform to the original law to the extent that it does not impair the identity of the work, shall be limited to the author with the right of integrity, and in principle, a third party may not make such alteration against his/her will without the consent of the author.

(b) A prior hearing service;

The hearing service provided by the Defendants without the Plaintiff’s consent constitutes an infringement on the Plaintiff’s right of integrity, barring any special circumstance, where the Defendants cut and transmit the form of expression of the Plaintiff’s work to Internet users for about 1 to 30 seconds against the Plaintiff’s intent, even though the Plaintiff’s original rice was about 3 to 5 minutes.

In regard to this, the Defendants asserted that the prior hearing service did not cut the original image form in the storage of the original image into the music file, and that the technical measure is taken in the process of transmitting the original image in the course of transmitting it by the string, and only limited time and real-time reproduction is not infringed on the right of integrity.

However, the expression form of a musical work protected under the Copyright Act is not limited to the original musical file in the process of converting and storing the original musical work into a music file, and the original musical work is characterized by human hearing sense, given its nature, the form of expression in the process of reproducing the converted musical file by specific sound that can be identified by human being is also included in the scope of protection. Even according to the Defendants’ assertion, the Defendants intentionally take technical measures during the process of transmitting and reproducing the Plaintiff’s original musical work in the process of transmitting and reproducing the original musical work (which is compared to the Plaintiff’s original musical level limit). Accordingly, the Defendants’ above act constitutes a change in the expression form of the musical work of this case. Accordingly, the Defendants’ assertion is without merit.

(c) telephone connection sound, mobile phone display services;

The call connection sound and mobile phone display service provided by the Defendants without the Plaintiff’s consent constitutes infringement on the Plaintiff’s right of integrity, barring any special circumstance, where the Defendants’ act constitutes an infringement on the Plaintiff’s right of integrity.

(D) Whether the personal value is damaged

Meanwhile, the Defendants, as a requirement for infringement of the right of integrity, need to harm the author’s reputation and reputation and other personal values. The Defendants asserted that each of the above services provided by the Defendants did not infringe the Plaintiff’s right of integrity by impairing the Plaintiff’s personal value.

Unlike the requirement of an infringement on the right of integrity, the right of integrity and integrity may not be denied to the purport of protecting the author’s personal interests as a kind of author’s moral right. However, Article 16 of the former Copyright Act (amended by Act No. 3916 of Dec. 31, 1986) provides that “The author shall have the right to object to the person who has harmed his reputation and reputation by making a change in the content or title of the work, regardless of his/her property right, and even after transferring his/her right, the author shall have the right to object to the person who has harmed his/her reputation and reputation” as the requirement of an infringement on the right of integrity, unlike the above amendment, the Copyright Act of the Republic of Korea after the amendment explicitly stated that the damage to the author’s reputation and reputation, etc. does not constitute the requirement of infringement on the right of integrity. Thus, the interpretation of the Copyright Act of the Republic of Korea has been made without the consent of the author who actually damaged the identity of the work. Therefore, it is reasonable to deem that such change constitutes an infringement on the right of integrity and integrity.

(2) Whether it is an inevitable change (Article 13(2)3 of the former Copyright Act)

(A) The defendants' assertion

The Defendants asserted that the Defendant’s act constitutes a change within the scope deemed inevitable under Article 13(2)3 of the former Copyright Act and does not bear the responsibility for infringement of the right to maintain identity, as it is inevitable for the Defendants to provide sampling services to the buyers of sound source services, and it is inevitable to use the Defendants’ business sales promotion. The call connection sound and mobile phone display service is a product due to the diversification of digital culture and it is inevitable to extract and use part of the original rice in part due to its characteristics.

(b) Legal provisions and criteria for determination

Article 13(2) of the former Copyright Act provides that "the author shall not raise an objection to any of the following changes: Provided, That the same shall not apply to an essential change." As a detailed item, "in the event that a work is used under the provisions of Article 23, the change of expression within the extent as deemed unavoidable for the purpose of school education, 2. Extension or rebuilding of buildings, other modifications, 3. Other modifications within the extent as deemed inevitable in light of the nature of the work, or the purpose and form of its exploitation."

Here, No. 1 and 2 can be interpreted relatively easily to the extent that the exercise of the right of integrity is restricted due to the need of public interest, because the purpose of use and the form of action are clearly limited objectively. However, there is no restriction on the field of use and the form of action in the work, and therefore, it is likely to damage the basic purpose of the Copyright Act that protects the right of integrity by excessively expanding the scope of illegality and protecting the right of integrity.

In light of this point, as to subparagraph 3, it shall be interpreted strictly to the extent equivalent to the above case of subparagraphs 1 and 2, and therefore, as to "the extent deemed unavoidable in light of the nature, purpose of use and form of the work" under subparagraph 3, it shall be interpreted that it is not necessary to guarantee the author's objection because it is inevitable to alter and use the work due to the technical limit or the limit of the performer's ability in the use of the work, etc., and it is not necessary to restrict the author's objection right due to the necessity of important public interest, and it shall not be deemed that the unauthorized user of the work arbitrarily cut and uses part of the work without the consent of the author for the mere reason of the necessity of transaction in the actual use.

(C) In the instant case:

As pointed out by the Defendants, that the Defendants provide a hearing service in advance to the potential buyers of the sound source service, and that they have the characteristics of extracting and using parts of the clocks, mobile phone locks and cell phone locks, it cannot be said that there are unavoidable circumstances under the above laws and regulations that can promptly make a change without obtaining the consent of the author, solely on the fact that the business operation or service needs to be given. Even if it is deemed necessary, the Defendants, the service provider, should be deemed to have agreed on what portion, except in a case where (i) the Plaintiff, the author, provided as a sampling, (ii) is to be provided as a sampling, (iii) is extracted from the music file of the mobile phone locks, and (iv) is to be stored in any of the whole music parts, and (iii) is to be used to a certain extent, and there is no reason to deem the Defendants to have changed the Plaintiff’s copyrighted works without permission, so long as it is deemed inevitable.

(d) Whether there is a fair practice

On the other hand, the defendants asserted that the act of providing a listener service as a sampling and selling telephone Belgium service as a fee without obtaining the author's individual consent, etc. is presented in advance to the small association (as a result, the trust rate of work management to the non-party association among the authors and copyright owners of large-scale copyrighted works depends on about 96%), and it is consistent with fair practices, and thus, it is not an infringement of the right of integrity.

On the other hand, the grounds for the defendants' assertion that the above provision is consistent with fair practices are deemed to be Article 25 of the former Copyright Act (a work already made public may be quoted for news reports, criticism, education, research, etc. to the extent justified). However, this provision is a type of fair use (fair use and fair use) with respect to restrictions on author's property rights, and each service cannot be deemed to constitute "personal use" under the above provision. Article 35 of the former Copyright Act stipulates that the above provision shall not be interpreted as affecting author's property rights. Thus, in this case at issue as to whether the right of integrity is infringed, the above provision on fair use is not applicable and there is no room for application of the above provision on the interpretation of the above provision (so, Supreme Court Decision 2005Do7793 Decided February 9, 2006, etc.). Thus, even if the non-party presented the possibility of prior hearing, telephone connection, mobile phone display service prior to the collection provision of the cost of using works, etc., it cannot be justified in the agreement between the plaintiff and the defendants's association.

5. Defendants’ liability for damages

A. Establishment of liability for damages

(1) Intention or negligence which is a requirement for establishment.

In order for the Defendants to be liable for damages caused by the Plaintiff’s infringement of author’s property right (right of reproduction, transmission right) and author’s moral right (right of attribution, right of integrity) to compensate for such infringement, there must be intention or negligence as to each

(2) Intentional or negligence on infringement of author's property right

(A) Defendant 1, 2, and 3

The above Defendants were used of the instant copyrighted musical work after concluding a lawful copyright exploitation agreement with the non-party association, which was originally authorized to use the copyrighted musical work. Thus, even if the Plaintiff terminated the instant trust agreement on April 6, 2004, insofar as the Plaintiff did not notify the said Defendants thereof, it cannot be said that the said Defendants were aware or could have known of such circumstances at the time of April 6, 2004, and thus, it cannot be said that the said Defendants were intentional or negligent as to the infringement of author’s property right at the time of April 6, 2004.

However, after the above termination date, Defendant 1 entered into a new contract for the provision of music source service with the non-party association on July 22, 2004, Defendant 2, July 15, 2004, and June 1, 2005, and Defendant 3 entered into a new contract for the provision of music source service. In the case of a new contract as above, the above Defendants should confirm the specific contents of the copyrighted work authorized by the non-party association. However, without confirmation, Defendant 1 was negligent in continuously providing the music source service of this case to the non-party association. Thus, Defendant 1 was negligent in the infringement of the plaintiff's property right from the above contract date to the above defendants from May 19, 2005, Defendant 2, June 2, 2005, and Defendant 3 received the plaintiff's copyright infringement notice from the non-party association around February 20, 2006.

(B) Defendant 4

From June 1, 2003, Defendant 4 did not enter into a contract to use the copyrighted musical work in this case with the Plaintiff as well as the Nonparty Association and used the copyrighted musical work in this case without permission. As such, Defendant 4, the above Defendant, from April 6, 2004, on the date of termination of the Plaintiff’s trust agreement, is recognized as intention or negligence on infringement of author’s property right.

(3) Intention or negligence with respect to the infringement of author's moral rights.

The Defendants did not indicate the Plaintiff’s name, which is the author or creator of the instant musical work, on the web page of the music site operated by the Defendants. In providing services such as listener, telephone connection, cell phone display, etc., the Defendants’ act of changing the contents or form of the instant musical work is recognized as intentional or negligent in infringement of author’s moral rights.

(b) Scope of damages;

(1) Authors’ property rights portion

(A) Determination criteria

Article 93(2) of the former Copyright Act provides, “When an author’s property right holder, etc. claims compensation from a person who has intentionally or negligently infringed his/her right, the amount of money which would normally be entitled to receive by the exercise of his/her right may be claimed as the amount of damages suffered by the author’s property right, etc.” In this context, the amount equivalent to the amount which would normally be entitled to receive by the exercise of the right refers to the amount objectively equivalent to the amount which the infringer would have paid if he/she would have obtained permission for the use of the work. In cases where the author does not enter into a contract for the use of the work in question or receive the user fee, the amount of the royalty generalized in the industry may be considered as one basis in calculating the amount of damages caused by the infringement. However, if the copyright holder entered into a contract for the use of the work in a similar form as the infringement, and the copyright holder has a reasonable ground to recognize the amount of damages under Article 93(2) of the former Copyright Act as the amount of damages suffered by the other party in collusion with the claim for damages arising from the infringement.

(b) the sales board;

① The Plaintiff asserts that the author and the artist of a musical work in a position similar to himself has received the cost of using the copyrighted work in the amount of KRW 5 million each through an individual contract, which constitutes “the case where the copyright holder entered into a contract for using the copyrighted work in relation to the use of the copyrighted work in a form similar to the infringement” under the above precedents, and thus, the Defendants asserts that the amount of damages calculated by the above method should be compensated for to the Plaintiff.

The case presented by the Plaintiff differs from the case of both the following: (a) where the Plaintiff entered into a contract for the use of musical works for advertisement, film, election, education, game, etc.; (b) where the Plaintiff entered into a contract for the use of musical works in addition to the permission for the use of musical works; or (c) where the relationship between distribution, reproduction, marketing, etc. (Evidence A 13, 19, 20, 29, 30, 31, 63, 60, 70, 71, 75, 79) and the case of this case where the authorization for the use of musical works is granted on the Internet; and (d) there is no evidence to support that the Plaintiff’s or the general public has received the price for the use of copyrighted works in the amount of five million won for each of the music sites with the operator of a specific music site. Therefore, the Plaintiff’s aforementioned assertion is without merit.

② The Defendants asserts that the amount of damages to be paid by the Defendants to the Plaintiff should be limited to the amount of damages that the Defendants are liable to compensate for to the Plaintiff, on the sole basis of the amount of KRW 2,928, 16,511, 200 from 202 to 2004, as well as the amount of KRW 2,928, and 36,511, in accordance with the collection provision that collects the royalty from the trust company, such as the Nonparty Association, etc. in accordance with the collection provision that collects the royalty at a certain rate compared to the frequency of use provided by the Nonparty Association, etc.

On the other hand, the defendants pointed out that the non-party association shall collect the amount of use in accordance with a certain rate compared to the frequency of exploitation when the non-party association enters into a contract for the use of copyrighted works with the operator of the music site, and that only a small amount of money is distributed to the author or artist, one of the right holders of copyrighted works, among the amounts collected after deducting various expenses, commission, etc. from the collected amount. However, the defendants pointed out that the specific basis for calculating each of the above distribution amount presented by the defendants is unclear, ⅰ) the provision of hearing services in advance is an act infringing the plaintiff's right of reproduction and transmission, but the non-party association's price policy infringes the right of reproduction and transmission, ⅲ) if the copyright holder enters into a contract for the direct use of copyrighted works with the operator of the music site, the management expenses, commission, etc. are not allowed to be deducted by the non-party association, which is the trust administrator, and even if it appears to be a considerable amount of deduction, the above amount of each distribution contract presented by the defendants cannot be asserted directly by the defendants.

(3) As can be seen, the Plaintiff suffered damages due to the Defendants’ infringement on the author’s property right, but falls under the case where it is difficult to calculate the amount of damages pursuant to Article 93 of the former Copyright Act, and thus, it is reasonable to recognize considerable damages by taking into account the purport of pleading and the result of examination of evidence pursuant to Article 94

In light of all the circumstances revealed through the following: the number of music sites and music source services operated and managed by the Defendants; the number of the Internet members secured by the Defendants; the authorization of the music site; the period of infringement of the Defendants’ author’s property rights; the degree of intention and negligence; the purpose of pleading, such as the authorization and authorization of the musical work of this case; and the result of examination of evidence: (a) the amount to be compensated by Defendant 1 due to the infringement of the author’s property rights of this case; (b) the amount to be compensated by Defendant 2,50,000; and (c) the amount to be compensated by Defendant 3, the amount to be compensated by Defendant 3, the amount to be compensated by Defendant 1, the amount to be compensated by Defendant 1,50,000; and (d) the amount to be compensated by Defendant 3,000,000 won.

(2) Author’s moral right portion

The defendants have the duty to avoid mental damage suffered by the plaintiff due to the plaintiff's infringement of author's moral right. In light of the omission of name indication of the work in this case, the degree of the modification of the work in this case, and all the circumstances described in paragraph (1) and (3) of the above paragraph, it is reasonable to determine the amount to be compensated by defendant 1 due to the infringement of author's moral right in this case as KRW 3,000,000, the amount to be compensated by defendant 2, and the amount to be compensated by defendant 3 as KRW 1,50,000, and the amount to be compensated by defendant 4 as KRW 3,00,000, respectively.

6. Conclusion

Therefore, Defendant 1’s total damages = 3,00,000 won + 3,000 won + 3,000,000 won + Defendant 2’s total damages + 2,500,000 won + 2,5000 won + 3,0000 won). Defendant 3’s total damages + 3,000,000 won + 1,500,000 won + 1,5000 won + 1,500,000 won per annum of the above total damages to Defendant 4; Defendant 4’s total damages to Defendant 6,00,000,000 won (=3,000,000 won + 3,000,000 won per annum of the above judgment against Defendant 2; Defendant 3,000 won per annum of the above judgment against each of the above Defendants’ respective damages to 0,000 won per annum of the judgment against Defendant 2, 2001,700.

【Attached Service Mark omitted】

Judges Lee Sung-ho (Presiding Judge) (Presiding Judge)