The prosecutor's appeal is dismissed.

The source code of program developed by the complainant of the summary of the grounds for appeal constitutes a creative expression, and thus protected under the Copyright Act, and the defendant produced and sold similar programs using the source code, a work, as described in the facts charged.

Nevertheless, the judgment of the court below which rejected the creativity of the source code of the program developed by the complainant and acquitted the facts charged is erroneous by misapprehending the facts due to the failure of the hearing and by misapprehending the legal principles.

Judgment

Article 101-2 subparag. 3 of the Copyright Act provides that a work is “a creative production belonging to the scope of literary science or art” and a work is “a creative production expressed in a series of instructions and orders used directly or indirectly within a device capable of processing information, such as a computer, in order to obtain a specific result” (Article 2 subparag. 1 and 16 of the Copyright Act). Here, the term “originality necessary for receiving a work as a work” does not mean a complete originality, but merely means a work that does not simply imitate any other work, but contains an original idea or expression of an author’s own idea or appraisal. In short, the expression that does not have to be identical or similar to any other work, i.e., a creative work of the author’s creator’s creative identity cannot be deemed as a creative work (see Supreme Court Decision 2005Da26527, Jan. 27, 2005).