[1] Whether the act of converting sound records into a computer compressed file and storing them in an auxiliary memory device of a computer constitutes reproduction of sound records (affirmative)

[2] Whether individual users of music viewing sites are likely to receive music viewing services with the same content at the same time (negative)

[3] Whether neighboring rights holders can exercise their neighboring rights regardless of the copyright holders or performers' intentions of musical works (affirmative)

[4] Whether it constitutes a distribution under the Copyright Act to transmit computer compressed files falling under the grains selected by users at music viewing sites to users’ computers and enable them to reproduce them in real time (negative)

[1] The conversion of a phonogram into a computer compressed file is conducted mechanically through a conversion program, and therefore, it is not reasonable to deem the conversion of a phonogram as a creative element. Since the converted computer compressed files have the integrity that can be seen as being fixed to a tangible object unless there are special circumstances, such as artificial deletion, etc., if stored in an auxiliary storage device of a computer, such file storage constitutes reproduction of a sound record.

[2] The music viewing service of a music viewing site with a characteristic that individual users can use the same music viewing service at different time does not constitute a broadcast because it does not meet the requirements of simultaneousness under Article 2 subparag. 8 of the Copyright Act solely on the ground that multiple users could receive the same music viewing service at the same time [the former Copyright Act (amended by Act No. 6134 of Jan. 12, 200) does not include simultaneous elements in the concept of broadcasting, but included new elements of simultaneousness in the concept of broadcasting in order to distinguish broadcasting from broadcasting, as the concept of transmission separate from broadcasting under Article 2 subparag. 9-2 of the Copyright Act is newly defined).

[3] Article 62 of the Copyright Act provides that the use of performances, phonograms, and broadcasts inevitably entails the use of copyrighted works. In this case, not only the permission of neighboring rights but also the permission of copyright holders is required. Since it does not purport that the neighboring rights holder cannot exercise his/her rights against the intent of copyright holders, the neighboring rights holder is entitled to exercise his/her rights regardless of the intention of copyright holders or performers of copyrighted works.

[4] The term "distribution" under the Copyright Act refers to transferring or lending the original or reproduction of a work to the general public with or without payment. It does not constitute a transfer or lease of the original or reproduction of a work to the general public by transmitting the computer compressed files corresponding to the grains chosen by the users at music viewing sites in real time by stringing them to the computer of the users.

[1] Article 2 subparag. 1 and 14 of the Copyright Act / [2] Article 2 subparag. 8 of the Copyright Act / [3] Article 62 of the Copyright Act / [4] Article 2 subparag. 15 of the Copyright Act

The Korea Food Producers Association, an incorporated association;

Bucks Co., Ltd. (Attorneys Yoon-sik et al., Counsel for the plaintiff-appellant)

1. Subject to the condition that the applicant deposits gold KRW 300 million (300,000,000) with a guarantee for the respondent or submits a payment guarantee consignment contract document with the above amount as the insured amount:

A. The respondent shall not reproduce the sound of each of the grains listed in the separate sheet in the form of a computer compressed file.

B. The respondent may not render a service using the reproduction of the sound sources of each of the sound recorded in the separate sheet in the computer compressed file format from the server of “www.bugs.co.kr” operated by the respondent.

(c) The enforcement officer shall give public notice of the purport of the order of Paragraph (a) above in an appropriate manner.

2. The applicant's remaining requests are dismissed.

3. One-fifth of the costs of lawsuit shall be borne by the applicant and the remainder by the respondent, respectively.

In addition to seeking a decision that the respondent shall not distribute the sound of each celebs listed in the attached list in the form of a computer compressed file, the respondent shall decide to the same effect as the Disposition 1.

1. Facts of recognition;

According to the records, the following facts are substantiated.

A. On March 17, 2003, pursuant to Article 78(1) of the Copyright Act, the applicant was a copyright trust management business entity that obtained permission from the Minister of Culture and Tourism to manage the trust of the neighboring rights of the phonogram producer, and each agreement was made to manage the neighboring rights of the above phonogram producer related to the media using online, such as the service (hereinafter referred to as “the trust management agreement of this case”) through the Internet, by dividing the string and the selected file into several string files with the connecting information in line with the network situation. The transmitted computer shall receive the string files, and at the same time receive the transmission of the string files, it is used in real-time transmission and realization of the string, music, etc., on the Internet by means of transmission, which is used in real-time transmission and implementation of the string, music, etc., and the trust management of neighboring rights of the phonogram producer related to the media using online (hereinafter “the trust management agreement of this case”).

B. The respondent, a commercial corporation, established for the purpose of music provision service and sales business through the wired and wireless network, the Internet content development and distribution business, etc., operated www.bugsic.co.kr site from February 2000 (the respondent subsequently changed the domain name to w.b.hecs.co.r.; hereinafter referred to as the "the site of this case") and approximately 150,000 music records, including each television recorded in the separate list, were stored in the auxiliary storage device of the site server of this case (hereinafter referred to as the "the file storage act of this case"), and then, stored approximately 150,00 music records in the auxiliary storage device of the site server of this case (hereinafter referred to as "the music service of this case") without compensation to the Internet users connected to the site of this case by transmitting the computer compressed files selected by the users through the computer programming method (hereinafter referred to as "music files of this case").

C. As the respondent, the "Internet Music Service Council", which is a group of companies that provide music viewing services through the setting method, provided the music viewing service for a fee from July 1, 2003 to the applicant's request. However, the respondent continues to provide the music viewing service of this case without the applicant's request for pay. On the other hand, about about 14 million members join the music-related site, and has the greatest number of members among the music-related sites (after other companies' pay-making, the share has increased to 70%). The respondent runs profit-making business through various pay-making contents, such as film, yellow, Belgium, education program, game, lottery, etc. on the basis of the number of these members.

D. The respondent paid the royalty for partial copyright or neighboring rights to the Korea Music Copyright Association and the Korean Federation of Arts Performers and Organizations that have entrusted and managed neighboring rights of performers who trust and manage the copyright of the copyright holders of musical works. However, after June 2003, the respondent did not enter into a contract for the re-contract for the use of copyright or neighboring rights with the above organizations.

E. On the other hand, on June 25, 2003, the respondent was charged with the violation of the Copyright Act under the suspicion that he copied the sound records (WAV files) together with the Nonparty, the representative director of the respondent, as well as the Nonparty, on July 18, 2003, who copied the sound records (WAV files) into the ASF file, by means of a computer compressed file.

2. Right to be preserved;

A. Determination as to the infringement of the right of reproduction

(1) According to the above facts, since the producer of the records of this case constitutes the producer of the records of this case as defined in Article 2 subparagraph 7 of the Copyright Act for each of the records recorded in the separate sheet, the applicant who entered into the trust management agreement with the producer of the records of this case shall have the right to reproduce each of the records recorded in the separate sheet in accordance with Articles 67 and 2 subparagraph 18 of the Copyright Act. Meanwhile, converting the records into the computer compressed files into the computer compressed files is made formally by the conversion program, and it is not reasonable to deem them as including creativity. Since the converted computer compressed files have the honorable nature to be deemed fixed in the tangible material unless there are special circumstances, such as artificial deletion, etc., if stored in the auxiliary storage device of the computer, the act of storing the records of this case also constitutes the reproduction of the records, the respondent infringed the right to reproduce the neighboring rights, which is the neighboring rights managed by the applicant.

(2) As to this, the respondent's act of storage of music files of this case is naturally accompanied by the provision of the music viewing service of this case, which is the act of broadcasting or transmission by the string method, and such act does not constitute reproduction under subparagraph 8 of Article 2 of the Copyright Act or transmission under subparagraph 9-2 of the same Article, and if it is deemed that the music listening service of this case can be suspended for the reason of infringement of the right of reproduction, it would be unfair to grant the music producers the broadcasting right or transmission right. ② The music listening service of this case constitutes a broadcasting business operator under subparagraph 8 of Article 2 of the Copyright Act because it satisfies the simultaneous requirements of the same Act, and even if the music listening service of this case is not a broadcasting business operator, the respondent is in a position similar to the broadcasting business operator, and the respondent does not have the right of reproduction under Article 2 subparagraph 8 of the Copyright Act at the time of providing the music listening service of this case, and the applicant's right of reproduction and neighboring rights cannot be seen as an abuse of rights under Article 18 of the Copyright Act.

(4) The purport of this case’s music file storage act is that the other party’s right to use music records of this case can be deemed as an abuse of rights under the Copyright Act if the other party’s right to use music records of this case were not necessarily accompanied by the act of storing files on a server’s auxiliary storage for broadcasting or transmission. Thus, it cannot be seen that the act of storing music records of this case can not be seen as absorption of broadcasting or transmission of music records of this case, and it cannot be seen that the other party’s right to use music records of this case can be viewed as an abuse of rights under the Copyright Act even if the other party’s right to use music records of this case cannot be viewed as an abuse of rights under the Copyright Act for the purpose of transmitting music records of this case, i.e., the other party’s right to use music records of this case cannot be viewed as an abuse of rights under the Copyright Act, regardless of the existence of the other party’s right to use music records of this case’s music records of this case.

B. Determination as to whether the right to distribute has been infringed

The applicant asserts that the respondent converted the sound sources of each of the grains in the separate list into a computer compressed file and stored them in an auxiliary memory device of the website server of this case, and that the applicant infringed on the right of distribution of the phonogram producer managed by the applicant by providing the music viewing service of this case to the users who access to the site of this case. The "distribution" under the Copyright Act means the "transfer or lease of the original or its reproduction to the general public without receiving or receiving the price (Article 2 subparagraph 15)" (Article 2 subparagraph 15), and it cannot be deemed that the delivery of the original or its reproduction to the user's computer and real-time reproduction to the user's computer by stringing, as in the above recognition, does not constitute a transfer or lease of the original or its reproduction to the general public, and since there is no evidence supporting that the respondent infringed on the right of distribution, this part of the allegation is not acceptable.

3. Necessity of preservation; and

The following circumstances revealed by the records of this case, i.e., members of the site of this case have reached 14 million won, and users who have access to the site of this case can listen to the rice that they want to use the music music market of this case without purchasing the music records, and it seems that the music viewing service of this case would have reduced in any form due to the music viewing service of this case. The respondent received a provisional disposition as in this case, and the respondent was indicted for violating the Copyright Act, but has continuously provided the music viewing service of this case, which infringes the applicant's right to reproduction, free of charge, and has the largest number of members of the music-related site. After other companies' pay-off measures, it is anticipated that the market share will increase continuously to increase to 70% or more, but other Internet music service providers will have considerable difficulty in continuously entering the Internet music market of the respondent and maintaining business due to the need to maintain neighboring rights, and the applicant's application for the deletion of the music records of this case will be recognized as the necessity of protecting neighboring rights to the applicant's right to the music site of this case.

4. Conclusion

Therefore, the application of this case is reasonable within the scope of the above recognition, and it is decided as per the disposition by admitting it as a security condition.

Judges Lee Hong-hoon (Presiding Justice)