[1] The meaning of the phrase "in the case of a work in which the real name or pseudonym of the author is indicated, such real name or pseudonym shall be indicated in the case of the work in which the real name or pseudonym of the author is indicated" under Article 34 (2) of the former Copyright Act, and the standard for

[2] The case affirming the judgment of the court below which acquitted Gap corporation, on the ground that it is difficult to deem that Gap corporation violated its duty to specify the source, in case where Eul, the president of the Dae-gu Wing Institute operated by the company Eul, cited and criticizes the cancellation of and an example answers to the issue of the oral test prepared by another Yu-Sing Institute in the public relations book for the above school

[1] In Article 12 (2) of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006), the legislative intent and contents of Article 34 of the same Act, and Article 12 (2) of the same Act, which provide for the author’s right to indicate the author’s real name or pseudonym, shall be indicated in accordance with the author’s real name or pseudonym, unless the author expresses his/her intention otherwise. However, in light of the proviso of Article 34 (2) of the same Act, the phrase “where the author’s real name or pseudonym is indicated in the work, the real name or pseudonym shall be indicated” is merely an example of the method to indicate the source of the work, and it is reasonable to interpret that the author’s real name or pseudonym should not be indicated in any case. Whether it is reasonable to recognize the source of the work including the name of the author in the manner that the work is made, the purpose of the use of the work and its use status should be comprehensively considered.

[2] The case affirming the judgment of the court below which acquitted the Defendant on the ground that it is difficult to conclude that the Plaintiff violated the duty to specify the sources, considering the following: (a) in a case where Party B, the president of the Daegum Technical Institute operated by Company B, cited and criticizes the cancellation of and the written response to the issue of crypology that is prepared by another U.S. Institute for Public Relations; and (b) indicated its source as “A.A.’s mother teaching material”; and (c) the author’s real name, etc. of the cited work, etc. of the cited work, as it is difficult for Party B to be distorted in light of the nature of public relations purpose, are clearly specified; and (d) the author’s name, etc. of the cited work, etc. of the cited work, which is likely to harm the author’s reputation, etc.

[1] Articles 12(2), 34 (see current Article 37), and 100 subparag. 1-2 (see current Article 138 subparag. 2) of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006) / [2] Articles 12(2), 34 (see current Article 37), 100 subparag. 1-2 (see current Article 138 subparag. 2) and 103 (see current Article 141) of the former Copyright Act)

Defendant 1 and one other

Prosecutor

Law Firm Roice, Attorneys Gyeong-young et al.

Seoul Northern District Court Decision 2006No1392 Decided February 15, 2007

The appeal is dismissed.

The grounds of appeal are examined.

Article 34(1) of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006; hereinafter the same shall apply) provides that "a person who uses a work under the provisions of this Section shall state its source: Provided, That this shall not apply in the case of Articles 24, 26 through 29, and 31," and Paragraph (2) of the same Article provides that "the place of origin shall be clearly indicated in the manner deemed reasonable in accordance with the situation in which the work is used, and where the real name or pseudonym of the author is indicated, such real name or pseudonym shall be indicated in the case of the work." The above provision provides that "In order to achieve the purpose of the former Copyright Act to protect the rights of the author and their adjacent rights, the real name or pseudonym of the author shall be indicated in the name of the author and the source of the work without permission of the general public so that it can be freely used, and the person who intends to use the work in the form and title of the author shall not be deemed reasonable in light of the purpose of legislation and purpose of the former Copyright Act."

According to the evidence duly adopted and examined by the court below, Defendant 1, an employee of Defendant 2 Co., Ltd. (hereinafter “Defendant Company”), published and distributed to Defendant 2’s employees during the occasional presentation session for the strategy of ○○ Private Teaching Institute’s ○○○○ Institute’s strategic presentation, which was operated by Defendant Co., Ltd., (hereinafter “Defendant Co., Ltd.”), was an advertisement book for the ○○ Institute’s ○○ Institute’s ○ Institute’s ○○ Institute’s ○○ Institute’s ○○ Institute’s ○○ Institute’s ○ Institute’s ○○ Institute’s ○ Institute’s 100th 200, introducing the question of the ○ Institute’s ○ Institute’s ○ Institute’s ○ Institute’s ○ Institute’s ○ Institute’s ○○ Institute’s ○○ Institute’s ○○ Institute’

Examining this in light of the legal principles as seen earlier, Defendant 1’s rescission of this case clearly distinguished from the part of his work to exclude the possibility of confusion or misunderstanding with the above Defendant’s work, thereby excluding the possibility that the cancellation of this case may be confused with the above Defendant’s work. Moreover, Defendant 1’s book of ○○ Private School appears to have been aware to the readers who are linked to this case’s work materials of high recognition level rather than teaching materials for ○○ Private Teaching Institute. As such, it is difficult to view the source of this method as likely to harm the interests of Nonindicted Company to assert that Nonindicted Company is the author of this case’s cancellation. In addition, it is difficult to conclude that there is no concern that the real name, title, etc. of the author of this case’s work cited in comparison with the above characteristics of the books for publicity as seen above, may not be acknowledged as the source of this case’s cancellation for the purpose of publicity, such as the name, reputation, and right and interest of the author of this case’s work. In full view of various circumstances, it can be acknowledged as the source of this case’s origin.

Therefore, it is reasonable for the court below to find the Defendants not guilty on the ground that Defendant 1, an employee of the Defendant company, violated the duty of identifying sources.

The court below did not err in the misapprehension of legal principle as to the violation of obligation to specify sources as alleged in the ground of appeal.

In addition, as long as the above determination by the court below is correct, even if Defendant 1’s act violates the duty to specify the source, it constitutes a justifiable act as stipulated in Article 20 of the Criminal Act, and thus, the judgment of the court below that the illegality is dismissed is merely an additional and family judgment, which is merely an additional and family judgment, and it cannot affect the judgment. Thus, the argument in the grounds of appeal as to this cannot be accepted without examining

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)