(영문) 광주지방법원 2016.9.2.선고 2015가단513058 판결

1. The defendant shall pay to the plaintiff 2,044, 400 won with 5% interest per annum from July 1, 2012 to September 2, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining main claims are dismissed.

3. Of the costs of lawsuit, 4/5 are assessed against the Plaintiff, and the remainder are assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

First, the Defendant’s KRW 48,00,000 and the instant case as to the Plaintiff from July 1, 2012

Until the date of service of the complaint, 5% per annum, 20% per annum from the following day to September 30, 2015, and the following day.

It shall pay 15% interest per annum from the date of full payment to the date of full payment.

Preliminaryly, the Defendant’s KRW 35,000,000 for the Plaintiff and the instant case as from July 1, 2012

5% per annum and from the following day to the date of service of the application for modification of the purport and cause of the claim

shall pay 15 per cent (15%) interest per annum.

Reasons

1. Basic facts

A. At around August 2003, the Defendant posted the Plaintiff (the author: C) on the company’s homepage of “100 Korea,” which he operated, five picture pictures with copyright (hereinafter the above five pictures collectively referred to as “the picture of this case”). (Although the Plaintiff asserted that the Defendant posted the above pictures from around 2002, it is insufficient to recognize the above assertion that the Defendant posted the above pictures, and there is no other evidence).

B. On the website set forth in the preceding paragraph, the character of the instant picture is connected to the “00 communications,” which is a web (electronic magazine) published by the Defendant, and the said web page also posted the picture.

C. The Defendant did not obtain the Plaintiff’s consent on the use of the instant pictures, such as the A and B.

D. The Defendant closed the company described in the paragraph (a) around June 9, 2006, but did not make it impossible for other persons to view the instant pictures by means of deletion of the instant pictures on the website or web page from June 30, 2012 to June 30, 2012, or closing the said website or web page.

E. The provisions of the Copyright Act relating to this case are as follows:

Article 35-3 (Fair Use of Works, etc.)

(1) Except as otherwise expressly provided for in Articles 23 through 35-2 and 101-3 through 101-5, a work may be used for news reports, criticism, education, research, etc., where the legitimate interest of an author is not infringed without conflicting with the usual methods of use of a production.

(2) In determining whether an act of using a work, etc. falls under paragraph (1), the following paragraphs shall be taken into account:

1. Purposes and characteristics of use, such as for-profit or non-profit;

2. Categories and uses of the works;

3. Proportions of used parts in the entire works, etc. and their importance;

4. Effect of the exploitation of works, etc. on the current or potential market or value of such works, etc..

(1) Where a person who holds author's property right or other rights protected under this Act (excluding author's property right and performer's moral right) (hereinafter referred to as "owner of author's property right, etc.") claims compensation from a person who has infringed on his/her right intentionally or by negligence against the person who has infringed on his/her right, and the infringing person claims compensation for damages caused by the infringement, the amount of such profits shall be presumed to be the amount of damage suffered by

(2) Where the holder of author's economic right, etc. claims compensation from a person who has infringed his/her rights intentionally or by negligence from the person who has infringed his/her rights, the amount equivalent to the amount ordinarily entitled to receive by exercising such rights may be claimed as the amount of damages suffered by the holder

(3) Notwithstanding the provisions of paragraph (2), if the amount of loss suffered by the holder of author's property right, etc. exceeds the amount under paragraph (2), the amount in excess may also be claimed as damages.

Article 125-2 (Claim for Statutory Damages)

(1) A holder of author's property right, etc. may claim reasonable compensation within the extent of ten million won (50 million won in cases of intentional infringement of rights for profit) for each work, etc. whose right is infringed in lieu of the actual amount of damages or the amount of damages determined pursuant to Article 125 or 126 against a person who has intentionally or negligently infringed on rights before the conclusion

[This Article-Newly Inserted by Act No. 1135, Dec. 2, 2011]

Article 126 (Recognition of Damages) If it is found that any damage has occurred, but it is difficult to compute the amount of damage pursuant to Article 125, the court may recognize a reasonable amount of damage in consideration of the purport of pleading and the result of examination of evidence.

The amended provisions of Articles 1110, 2 (Application Cases) and 103-3, 125-2, and 129-2 through 129-5 of the Addenda shall apply from the date on which the first infringement of rights occurs or the breach of duty has occurred after this Act enters into force.

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. The plaintiff's assertion

From around 2002 to June 30, 2012, the Defendant infringed the Plaintiff’s copyright by using the instant picture on the website and web page without permission.

Therefore, in accordance with Article 125(2) of the Copyright Act, the Defendant is obligated to pay to the Plaintiff KRW 33,00,000 [the Plaintiff [the Plaintiff KRW 330,00 per year on the website of the forest x 5 x 10 years] and mental damages plus KRW 15,00,00 per page (330,00 per year on the web page of the forest x 5 x 5 x 10 years].

Preliminary Defendant is obligated to pay to the Plaintiff KRW 35,00,000 for each forest and delay damages therefor, calculated as KRW 7,000 per unit of the forest in accordance with Article 125-2 of the Copyright Act.

3. According to 1-A through 1-3, the Defendant’s infringement of the Plaintiff’s copyright on the instant pictures by intention or negligence is recognized. Accordingly, the Defendant is liable to compensate the Plaintiff for damages due to tort.

2) As the Defendant used the instant forest for non-profit purposes, he/she did not bear liability for damages pursuant to Article 35-3 of the Copyright Act. However, according to the evidence Nos. 1-A, 2-2 and 9 of the same Act, the Defendant used the instant forest for non-profit purposes as it used the instant forest in relation to a company that he/she operated for profit-making purposes (a company that sells agricultural machinery and equipment). Even if it was non-profit purposes, even if it was the Plaintiff’s legitimate interest, he/she received the user fee for the instant forest (Article 8 and 11 of the Copyright Act also received the user fee for using the said forest in the news box issued by Gangdong-gu, a public institution, and the Plaintiff’s use of the said forest without the Plaintiff’s consent pursuant to Article 35-3 of the Copyright Act. Moreover, the Defendant’s assertion that it was not a copyright infringer, but the Defendant’s assertion that it was not a copyright infringer, regardless of whether it was the issuer of the said Web.

4. Scope of liability for damages

A. According to Paragraph 1 of Article 1 of the Copyright Act, the period during which the Defendant infringed the Plaintiff’s copyright to the instant forest is from August 2003 to June 30, 2012.

As to this, the Defendant’s closure of the company described in paragraph (1) of June 9, 2006, and there was no person visiting each Internet site of the website and web library, and each of the above Internet sites was left unattended, so the period of copyright infringement is the date of the closure of the business. However, until June 30, 2012, since anyone had access to each of the above Internet sites and could see the instant pictures, it cannot be deemed that the copyright infringement was terminated.

B) Since the Defendant also filed the instant lawsuit after the lapse of 10 years from August 2003, the Plaintiff’s right to claim damages was extinguished by extinctive prescription.

The defendant continued to commit a tort during the period specified in the preceding paragraph, and thus, among them, ten years have passed since May 20, 2015, which was the date of filing the lawsuit in this case.

The extinctive prescription of a claim for damages caused by a tort has expired.

The defendant's defense is justified within the scope of the above recognition.

C) Therefore, the period of copyright infringement, for which the defendant is liable for damages, shall be May 20, 2005.

From June 30, 2012 to June 30.

2) The facts that the Defendant’s copyright infringement media used the instant pictures on the website and web page are as seen earlier. According to the purport of the evidence and the entire pleadings, the Plaintiff is recognized as having received the fee for using the pictures by each medium using the pictures (if the same pictures are used in multiple media according to the evidence, the fee shall be discounted if they are used in the same media. The specific contents are examined in paragraph (3) below). Thus, the amount of damages should be calculated on the premise that the copyright of the instant pictures has been infringed twice.

Although the Defendant asserts that the copyright of the instant picture was infringed only once, the mere fact that the website and the web page are linked (connection) cannot be deemed as having actually identical to the two media. Therefore, the above assertion is without merit.

3) Legal principles relating to the fee for the use of the instant forest

In calculating the amount of damages pursuant to Article 125(2) of the Copyright Act, the term “amount equivalent to the amount which can be ordinarily received by the infringing person’s exercise of his/her right” refers to the amount objectively equivalent to the amount which the infringing person would have paid for if the infringing person had obtained permission to exploit works in a form similar to the infringement. In cases where the copyright holder received a royalty by entering into a contract to exploit works in relation to the exploitation of works similar to infringement, barring any special circumstance, the amount of damages may be calculated on the basis that the copyright holder would normally receive by exercising his/her right. In cases where the copyright holder does not enter into a contract to use the works in a manner similar to infringement or receive a royalty, barring any special circumstance, the amount of damages may be calculated on the basis of the amount of damages calculated on the basis of the royalty generalized in that industry. However, when it is difficult to calculate the amount of damages pursuant to the above provision based on the royalty generalized in that industry, the court may determine a reasonable amount of damages in consideration of the purport of pleading and the result of examination of evidence (see Supreme Court Decision 20773333, Mar.

B) the facts of recognition

The following facts are acknowledged in full view of evidence Nos. 5 through 7, witness D's testimony and the purport of the whole pleadings.

① In October 199, the Plaintiff entered into a contract with a third party to enter into a contract with the authority to use the copyrighted picture on its own with the consent of the third party and to pay the royalties therefrom, Co., Ltd. (former trade name: 000 services, Co., Ltd.; hereinafter referred to as “E”), and the said delegation contract has been renewed and maintained until now.

② According to the delegation contract above, E acquires 40% of the fee for the forest from a third party as commission, and pays the remainder 60% to the Plaintiff.

3. The following terms are specified in a contract for forest use concluded with a third party in accordance with the above delegation contract:

Article 2 (1) The royalty provided for in the provisions of Section 2 (1) shall be applied only once, once, once, once, once, once, once, and in one medium.

(3) If the same work is reusable within two months from the date of the loan, 80% of the regulatory fee at the time of the second use, and 60% of the regulatory fee at each time of use after the third use, provided that if the use, size, etc. are different, the highest of the use fee is applied as the first one.

④ The parts related to this case in the price list of works used by E from 2003 to 2012 (hereinafter “price list”) are as follows:

사진저작물사용가격표 ★ 저작물의 사용범위는 1회, 1사, 1용도, 1규격, 1매체에 한하여 사용기간은 대출일로부터 12개월입니다 .

★ 일러스트는 해당 사용 요금의 2배 입니다 .

★ 대출일로부터 2개월 이내에 동일한 광고주가 재사용시 2차는 규정요금의 80 %, 3차부터 규정요금의 60 % 를 적용합니다 .

1. According to the facts found in paragraph (3) of the same Article, the money which a third party is obligated to pay to the plaintiff when it posts one picture with copyright on the plaintiff's web site is 30,000 won (per 165,000 won x 2 times because it is click) if it is excluded from E's fees. The money which the plaintiff receives is 198,000 won (per 330,000 won x 60%) if it is used as c'b, it is difficult to recognize that the above 30,000 won is 10,00 won (per 110,00 won X , so it is 20 times) if it is used as c's c', but it is difficult to recognize that the above 3's c's c't's c's c's c's c' of the above 2's c's c' price out of the above 3's c's c' price.

Furthermore, since the defendant used the same picture to the web page and web page, 20% discount is made on the user fee of one medium among them. Accordingly, the sum of the money the plaintiff is entitled to receive out of the user fee of the web page and the web page of this case shall be 237,600 won per unit of the forest ( = 132,000 won + (132,000 won + 80%) 1,188,000 won ( = 237,600 x 5). The defendant is 1,18,000 won in total (=237,600) under the preceding paragraph 1,18,000 won in total and 5) under the premise that the user fee is set in one year unit, and the plaintiff shall calculate the amount of damages by multiplying the user fee by the period of infringement (i.e., the period of infringement claimed by the plaintiff).

B. The following circumstances, i.e., ① the use period per year as long as the period of use of copyrighted works has expired, and the average user fee per year is not determined and determined at each time of concluding a contract for use, rather than the use rate, and ② the use contract concluded with a third party under the delegation contract with the Plaintiff or E concluded with a third party under the delegation contract with the Plaintiff does not stipulate the period of use, and there is no difference in the estimated price for part of the instant copyrighted works according to the delegation contract with a third party under the delegation contract with the Plaintiff. Since the object of the contract for use with a third party under the delegation contract with a third party including the Plaintiff, it is difficult to conclude that E used during the period of use while concluding a contract for use with a third party under the delegation contract with a third party, ③ the use period of the instant copyrighted works has been reduced to the point that it is difficult to acknowledge that the Plaintiff continued to use the existing website until the lapse of the period of use, and thus, it cannot be seen that there is a lack of subjective value of the Plaintiff’s display or new use.

E) If so, for seven years from May 20, 2005 to June 30, 2012, the Defendant liable for damages, the Plaintiff is difficult to calculate the amount which the Plaintiff would normally receive by exercising the copyright in relation to the instant pictures. Thus, rather than Article 125(2) of the Copyright Act, the amount of damages should be recognized pursuant to Article 126 of the Copyright Act, not Article 125(2) of the Copyright Act.

C) In full view of the circumstances examined in the facts found in paragraph (d) and the purport of the entire pleadings, the amount of damages shall be recognized as follows.

① A year from May 20, 2005 to June 9, 2006 (the cessation date of business of the Defendant): 831,600 won (before about three years elapse from the time when the Defendant infringed on the copyright to the forest of this case) 1, 188,00 won under paragraph (3) x 70%

(2) From June 10, 2006 to June 30, 2012: 712, 800 won: 712, 712, and 800 won under paragraph (c) x 188,00 won x 10 percent x 6 years.

③ The Plaintiff filed a claim for statutory damages based on Article 125-2 of the Copyright Act as the conjunctive claim by the Plaintiff (=831,600 won + 712,800 won). However, inasmuch as the amount of damages is recognized pursuant to Article 126 of the same Act upon the Plaintiff’s primary claim, it is not examined as to the conjunctive claim (Article 125-2 of the Copyright Act cannot be applied to this case because the date when the Defendant infringed the Plaintiff’s copyright was August 2003).

(b) Mental damage;

According to the facts acknowledged earlier, it is reasonable to view that the Defendant infringed the Plaintiff’s moral rights by using the instant picture on the website and web page. Accordingly, the Defendant is liable to compensate the Plaintiff for the emotional distress suffered by the Plaintiff.

The amount shall be 500,000 won per forest (100,000 won per forest x 5) in consideration of all the circumstances, such as the use, method, period of use, and fees for the use of the forest of this case.

C. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at each rate of 5% per annum under the Civil Act from July 1, 2012, which was after the date of tort, to July 2, 2016, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment (the date of sentencing in this case).

5. Conclusion

Therefore, the plaintiff's main claim is accepted within the above scope of recognition, and the remaining main claim is dismissed as it is without merit, and the conjunctive claim is not judged as to it. It is so decided as per Disposition.