Defendant 1 and 1

Defendants

Maritime Affairs and Trade Organization

Law Firm Rois Law Firm, Attorney Kang Jong-soo

Seoul Northern District Court Decision 2006 High Court Decision 2122 Decided December 13, 2006

The judgment of the court below is reversed.

Defendants are not guilty.

1. Summary of the Defendants’ grounds for appeal

As to the facts charged that the Defendants violated the obligation to indicate the source under the Copyright Act, since the Defendants indicated Nonindicted Co. 1 (Nonindicted Co., Ltd. in the judgment of the Supreme Court) as “AAA Research Institute” inevitably for business practices and the purpose of acceptance, they did not violate the obligation to indicate the source, and even if they violated the said obligation, considering all circumstances, it should be pronounced not guilty on the grounds that it constitutes a justifiable act that does not violate the social rules. Nevertheless, the lower court’s conviction against the Defendants is a violation of the rules of

2. The facts charged in this case and the judgment of the court below

The facts charged of this case are:

1. Defendant 1 is a person working as the president of the ○○○○ Institute located in Nowon-gu in Seoul Special Metropolitan City (hereinafter omitted) and, in the case of using another person’s work, the source should be specified. However, on May 10, 2006, prior to holding an occasional strategic briefing session for the Plaintiff’s parents located in the Seoul Hot Spring Holdings located in Nowon-gu in Seoul Special Metropolitan City, Nowon-gu, the author for public relations analysis of the call issue, namely, “ dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to dedicated to 200, the author cited the contents in the manner of “A,” indicating the cancellation and an example response (hereinafter “the cancellation of this case”) prepared by Nonindicted Company 1, 100 parents present at the said explanatory meeting, using the work without specifying the source.

2. Defendant 2 Co., Ltd. is that Defendant 1, an employee of Defendant 2, committed an act of violation as described in paragraph 1 in relation to the Defendant’s business.

In regard to this, the court below found the Defendants guilty on the ground that the Defendants did not constitute a justifiable act unless the Defendants clearly indicate the source.

3. The judgment of this Court

A. Organization of issues and interpretation of the Copyright Act

The prosecutor assumes that the defendants' act of accepting the answer in this case is a legitimate act of quotation for the purpose of criticism that can be conducted without the consent of the non-indicted 1 corporation, the copyright holder, based on Article 25 of the Copyright Act, that is, "a work made public may be quoted for news report, criticism, education, research, etc., in conformity with fair practices within the reasonable scope." However, the prosecutor prosecuted the defendants on the ground that they did not indicate the source in accordance with Article 34 of the Copyright Act and did not indicate it as a copyright holder.

Article 34 of the Copyright Act provides that “a person who uses a work under the provisions of this Section shall indicate its source: Provided, That this shall not apply to the cases under Articles 24, 26 through 29, and 31 (Article 1). The indication of source shall be made in the manner and to the extent deemed reasonable according to the situation in which the work is used. In the case of a work bearing the real name or pseudonym of the author, the real name or pseudonym must be indicated (Article 2.2).” Moreover, the cancellation of this case is recorded in the book of “△△ 1” of publication of the Gisung Pami whose real name is indicated by Nonindicted 1 Stock Company. As such, in principle, the Defendants should not indicate “A private teaching institute” the real name of the copyright holder as the source pursuant to the latter part of Article 34(2) of the Copyright Act.

However, for the public interest purpose of the Copyright Act, which is to improve culture, the duty to specify the source is to guarantee the right of a copyright holder to freely exploit another’s copyrighted work, but to distinguish between the copyrighted work of the other person and the copyrighted work of the other person, and to guarantee the copyright effectively by indicating that the copyrighted work of the other person is protected under the Copyright Act. Therefore, if the source is indicated in accordance with the purport of the provision, the duty to indicate the source is not necessary to impose an obligation to indicate the source only after the latter part of Article 34(2) of the Copyright Act. Such interpretation is supported by the right to indicate the name in the Copyright Act (Article 12(2)), which is on the extension of the obligation to indicate the source (Article 12(2)). While the main text of the above provision provides that “When a person who uses a copyrighted work has expressed his/her real name or second name, the author does not have to indicate it in accordance with his/her real name or second name if it is deemed inevitable in view of the nature of the copyrighted work, the purpose of its use or form thereof, etc.”

Therefore, under such legal doctrine, it is deemed that the indication “AAA Research Institute” was an appropriate method of indicating the source in light of the nature of the work, the purpose of its use (proviso of Article 12(2)), the situation in which the work was used (proviso of Article 34(2)), etc.

(b) recognition of basic facts;

In full view of the evidence duly adopted and examined by the court below, the following facts are recognized:

(1) The Korea University set up the debate on the system between Hegel and Hegelian Labor in 200 as an issue of the essay-type examination and opened the question of the degree of preparation and the question-finding. Nonindicted Co. 1 published the “△△1,” which is a teaching material for essay-type education, and published the instant rescission in a way that analyzes the above issues, the degree of preparation, the degree of questions, and the problem-finding theory disclosed by the Korea University.

Before holding an occasional presentation session on the strategy of the ○○○ Institute, the Defendants published a book for the purpose of publicity “ dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the Gu.

Article 2(1) of the Criminal Procedure Act provides that the Defendants’ publication of the instant rescission on the books for publicity purposes of the Republic of Korea shall include the following: (a) the Defendants presented the issue of the Korea University; and (b) indicate a summary number in some sentences when publishing the instant cancellation in the gambling room under the title of “the wrong explanation of the Institute of Korea”; and (c) as to each outline number, the Defendants posted the cancellation on the following: (a) - - - - 'the influence of the concept of Germany’; (b) 'the influence of the selection of the text - the influence of the text - the influence of the interpretation of the debate - the influence of the text - the influence of the debate; and (d) ○○○ School’s cancellation as the title “the influence of the ○○

x) Meanwhile, Nonindicted Co. 1 is one of the most valuable large private teaching institutes in relation to the subject matter at the time of entering a university, and △△△1 issued by Nonindicted Co. 1 is a teaching material with a high recognition. On the other hand, ○○ Private Teaching Institute has not entered the market for the subject matter matter.

(v) Nonindicted Co. 1 filed a complaint with the Defendants as defamation, along with the infringement of author’s property rights and the violation of duty to disclose sources, regarding the acceptance of the rescission of the instant case; however, Nonindicted Co. 1 was not prosecuted on the ground that the Defendants were charged with the duty to disclose sources and defamation

C. Whether the indication of “AAAAD” is an indication of appropriate source

In light of the above basic facts, the following judgments can be made:

In light of the purport of the article that the Defendants cited the cancellation of this case in the public relations book book, or introduced to the book, the Defendants excluded the possibility that the cancellation of this case would be confused with the Defendants’ copyrighted works by clearly expressing the cancellation of this case as another person’s copyrighted works separately from their own copyrighted works, which conforms to the basic purport of the duty to indicate the source. In addition, even if the cancellation of this case was indicated as “A private teaching institute” in light of Non-Indicted 1 and △△△ 1’s awareness, it does not seem that Non-Indicted 1 did not completely obstruct the Defendants’ assertion of the cancellation of this case as their copyrighted works, and thus, it does not go against the purpose of the duty to indicate the source of effective guarantee of copyright. In particular, the Defendants appears to have indicated “A private teaching institute” as “work without indicating their real names,” without indicating their names, due to fear of decline in the internal process and reputation of credit in the industry following the criticism of other private teaching institutes. In light of the aforementioned circumstances or the purpose of its use.”

Therefore, the judgment of the court below which convicted the Defendants on the premise that the indication of "AH" can be a proper method to identify the source instead of the real name indication, and thus, it is reasonable to pronounce the Defendants not guilty. However, there is an error of law by misapprehending legal principles such as the duty to identify the source under the Copyright Act, and there is a ground for appeal by

(d) Whether it violates social norms;

Even if the indication of "AAAAAD" is a violation of the obligation to indicate the source, the Defendants' act is deemed unlawful as a justifiable act that does not violate the social rules, if it is comprehensively taken account of the following: (a) the purpose and motive of the acceptance as seen earlier, the reasonableness of the method of indication, and the criticism as seen in this case and the issue of damage to credit therefrom are considerably different from the purpose of legal interests protected by the Copyright Act; and (b) the cancellation of this case is merely a summary of the issues of Korea University, the intent of setting questions, and the issues; and (c) its creativity is limited to the minimum degree necessary for the recognition of copyrighted works; (d) the degree of infringement of copyright suffered by Nonindicted Co. 1 corporation is minor; and (e) the risk of criminal punishment that the Defendants may suffer due to the indication of real name is highly high. Accordingly, the judgment of the court below is erroneous in the misapprehension of legal principles as to grounds for

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the defendants' appeal is justified, and the judgment is delivered again as follows.

As seen earlier, the judgment of the court on the facts charged of this case and the facts charged of this case is as follows. Since there is no proof of crime or no crime, it is so decided as per Disposition by the assent of all participating Justices on the acquittal of the Defendants pursuant to the latter part of Article 325 of the Criminal Procedure Act

Judges Kim Young-chul (Presiding Judge)