[1] The meaning of "amount equivalent to the amount which can be ordinarily received by exercising the right" under Article 93 (2) of the former Copyright Act and the method of calculating the amount

[2] Whether the fault of the victim should be taken into account in calculating the amount of damages caused by the infringement of author's property right pursuant to Article 94 of the former Copyright Act (affirmative)

[3] In a case where an Internet portal operator illegally reproduced, displayed, or transmitted another person's photographic work, the case holding that the court below's determination of damages for infringement of author's property right is considerably unreasonable in light of the principle of equity if the ground for offsetting the owner's negligence is not taken into account at all

[1] In calculating the amount of damages pursuant to Article 93(2) of the former Copyright Act (wholly amended by Act No. 8101 of Dec. 28, 2006), the term “amount equivalent to the amount ordinarily entitled to exercise the right” refers to the objectively reasonable amount that the infringer would have paid as the consideration if the infringer had obtained permission to exploit the work, and in case where the copyright holder has received the royalty by entering into a contract for exploitation of a work in a form similar to the infringement, barring any special circumstance, the amount of damages may be calculated on the basis of the royalty determined under the contract for exploitation by deeming the royalty as the amount which the copyright holder would normally have received by exercising his/her right. If the copyright holder has no record of entering into the contract for the exploitation of the work or of receiving the royalty, the amount of damages may be calculated on the basis of the amount of damages calculated on the basis of the royalty generalizing in the industry. However, when it is difficult to calculate the amount of damages pursuant to Article 93(2) of the former Copyright Act based on the generalization of the industry, the purport of pleading and the examination of evidence.

[2] If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, it shall be taken into account as a matter of course in determining the scope of compensation for damages by the perpetrator. In bridge the ratio of negligence between the two parties, the circumstances related to the tort shall be sufficiently taken into account in light of the purpose of the system of fair burden of damages. The fact-finding or determination of the ratio is an exclusive authority of a fact-finding court, but it shall not be considerably unreasonable in light of the principle of equity. Such a legal principle likewise applies to the case of calculating the amount of damages caused by the infringement of author’s property right pursuant to Article 94 of the former Copyright Act (wholly amended by Act No. 8101 of Dec.

[3] In a case where an Internet portal operator illegally reproduced, displayed, or transmitted another person's photographic work, the case holding that the court below's calculation of damages for infringement of author's property right and the court below did not take into account all the grounds for offsetting negligence, such as failure to take preventive measures against reproduction of author's property right, etc.

[1] Articles 93(2) and 94 (see current Article 125(2) of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006) / [2] Articles 396 and 763 of the Civil Act; Article 94 of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006; see current Article 126) / [3] Articles 396 and 763 of the Civil Act; Article 94 of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006; see current Article 126)

[1] Supreme Court Decision 99Da69631 Decided November 30, 2001 (Gong2002Sang, 160) Supreme Court Decision 2007Da354 Decided May 28, 2009 / [2] Supreme Court Decision 2003Da6873 Decided February 27, 2004 (Gong2004Sang, 529) Supreme Court Decision 2006Da50338 Decided September 11, 2008

Plaintiff

KS Communications Co., Ltd. (Law Firm Barun, Attorneys Oh Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na96589 decided October 2, 2007

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

The plaintiff and the defendant's grounds of appeal are examined together (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The plaintiff's ground of appeal and the defendant's ground of appeal No. 1

In calculating the amount of damages pursuant to Article 93(2) of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006; hereinafter the same), “amount equivalent to the amount ordinarily entitled to exercise the right” refers to the objectively reasonable amount that the infringing person would have paid as the consideration if the infringing person had obtained permission to exploit works in a manner similar to the infringing act. In cases where the copyright holder received the royalty under a contract to exploit works in a manner similar to the infringing act, barring any special circumstance, the amount of damages may be calculated on the basis of the royalty determined under the contract to use the works can be deemed as the amount which the copyright holder would normally have received by exercising the right. In cases where the copyright holder has no contract to use the works in a manner similar to the infringing act, the amount of damages may be calculated on the basis of the royalty generalizing in the industry once it is difficult to calculate the amount of damages pursuant to Article 93(2) of the former Copyright Act based on the usage fee generalized in the industry.

In light of the above legal principles and records, the court below is just in calculating the amount of damages suffered by the plaintiff as to the photographic works of this case, which the defendant illegally reproduced, displayed, or transmitted without permission, based on Article 93(2) of the former Copyright Act. The court below did not err by failing to exhaust all necessary deliberations or by violating the rules of evidence, as alleged by the plaintiff and the defendant, in light of the facts revealed by the result of investigation of evidence and the purport of whole pleadings pursuant to Article 94 of the former Copyright Act.

2. As to the defendant's second ground for appeal

If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, it shall be taken into account as a matter of course in determining the scope of the tortfeasor's compensation. When the ratio of negligence between the two parties is added, the circumstances related to the tort shall be sufficiently taken into account in light of the purpose of the system of fair burden of damage. Even if the fact finding or determining the ratio is the exclusive authority of a fact-finding court, it shall not be considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 2003Da6873, Feb. 27, 2004; 2006Da50338, Sept. 11, 2008). Such a legal principle likewise applies to the case of calculating the amount of damage caused by an infringement of author's property right pursuant to Article 94 of

According to the records, the instant photographic material was made public by the Plaintiff’s posting on its website as an image file as indicated in the judgment of the court below. At the time, multiple Internet portal site operators had already searched the image file which is made public on the Internet without permission and collected the necessary image file by using the image file collection program which is called the search robot, and the Plaintiff had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had had

Nevertheless, the court below ordered the Defendant to compensate for the entire amount of damages calculated by the aforementioned method without considering the aforementioned circumstances entirely as the grounds for offsetting negligence, which is a significant unreasonable measure in light of the principle of equity.

Therefore, the judgment of the court below on this part is erroneous in the misunderstanding of legal principles as to offsetting negligence in tort, which affected the conclusion of the judgment. The defendant's assertion pointing this out has merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)