The purport of Article 104(1) of the Copyright Act, Article 46(1) of the Enforcement Decree of the Copyright Act, and Article 46(1) of the same Act / Where an online service provider of a special type takes necessary measures under Article 46(1) of the Enforcement Decree of the Copyright Act, whether it shall be deemed that he/she took necessary measures under Article 104(1) of the Copyright Act (affirmative), and whether it may be determined differently solely on the ground that the result of actual illegal transmission

Article 104(1) of the Copyright Act, and Article 46(1) of the Enforcement Decree of the Copyright Act, purport of Article 104(1) of the same Act is to impose a limited obligation to take necessary measures prescribed by Presidential Decree in cases where there is a “holder’s request” in consideration of the fact that an online service provider is subject to an aggravated obligation to protect copyright, etc. from illegal transmission of copyrighted works, etc., on the other hand, and that even considering such legislative purpose, it is impossible to impose an obligation to completely block illegal transmission due to technical limitations

In full view of the language, legislative purport, etc. of such statutes, if an online service provider took necessary measures under Article 46(1) of the Enforcement Decree of the Copyright Act, it shall be deemed that necessary measures have been taken pursuant to Article 104(1) of the Copyright Act, and it shall not be determined differently solely on the ground that an actual result of illegal transmission occurred.

Article 104(1) of the Copyright Act; Article 46(1) of the Enforcement Decree of the Copyright Act

Abby-rap Co., Ltd. (former trade name: Internet Light High Co., Ltd.)

Seoul Western District Court Order 2011Ra63 dated February 20, 2014

The order of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of reappeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 104(1) of the Copyright Act provides that an online service provider whose main purpose is to transmit copyrighted works, etc. by means of computers between other persons (hereinafter “online service provider of special type”) shall take necessary measures, such as technical measures, etc. to block illegal transmission of the pertinent copyrighted works, etc. at the request of the holder of rights, and that matters regarding “necessary measures, etc.” shall be prescribed by Presidential Decree.

According to delegation, Article 46(1) of the Enforcement Decree of the Copyright Act provides that “necessary measures” include “1. Technical measures that enables recognition of copyrighted works, etc. compared to the characteristics of copyrighted works, etc.; 2. Measures to restrict search and transmission and measures to block illegal transmission of copyrighted works, etc. recognized pursuant to subparagraph 1; 3. Where the illegal sender of the copyrighted works, etc. can be identified, the dispatch of warning to the sender of the copyrighted works, etc. requesting the prohibition of copyright infringement, etc.”

The purport of the aforementioned provision is to impose a limited obligation on an online service provider to take necessary measures prescribed by Presidential Decree in cases where there is a “holder’s request” in consideration of the fact that, in order to protect copyright, etc. from illegal transmission of copyrighted works, etc., an online service provider is subject to an aggravated duty, while taking into account the fact that even if considering such legislative purpose, it is not possible to impose an obligation to completely block illegal transmission due to technical limitations, etc.

In full view of the language, legislative purport, etc. of such statutes, if an online service provider took necessary measures under Article 46(1) of the Enforcement Decree of the Copyright Act, it shall be deemed that necessary measures have been taken pursuant to Article 104(1) of the Copyright Act, and it shall not be determined differently solely on the ground that an actual result of illegal transmission occurred.

2. A. Review of the reasoning of the lower judgment and the record reveals the following circumstances.

(1) The Copyright Protection Center affiliated with the Federation of Korea Copyright Organizations delegated monitoring from the Minister of Culture, Sports and Tourism, and supervised the Internet site called “○○” operated by the re-appellant.

(2) The Copyright Protection Center selected at will 50 of the 429 games, which are requested by the right holder to “necessary measures, such as technical measures that block illegal transmission” under Article 104(1) of the Copyright Act, and confirmed whether it is possible to search and download 100 or more of the recent posts in the game-related category in parallel with the method of searching at least 100 of the 100 of the 100s of the 100s of the 100s of the 100s of the 100s of the 10s of the 100s of the 10s of the 10s of the 10s of the 10s of the 10s of the 10s of the 10s of the 10s of the 10s of the 10s of the 10s of the 10s of the 20s

(3) The Minister of Culture, Sports and Tourism calculated the blocking rate of 70% (i.e., 100 x 35/50) according to such monitoring results, and notified the re-appellant of the disposition of the fine for negligence in advance. Accordingly, the re-appellant submitted a written opinion and explanatory materials to the effect that the re-appellant was making efforts to take technical measures, such as the introduction of DNA technology by the relevant work sector and the comparison of sea value, the Minister of Culture, Sports and Tourism recognized

B. Examining these facts in light of the legal principles as seen earlier, there is room to view that technical measures asserted by the re-appellant were “necessary measures” under Article 104(1) of the Copyright Act. Nevertheless, the lower court concluded that the re-appellant is subject to a fine for negligence on the sole ground that there is always the risk of infringement on copyright in the case of a special online service provider without properly deliberating thereon, and that there is a duty to take technical measures for the protection of high-level copyright. In so doing, the lower court erred by misapprehending the legal principles on necessary measures under Article 104(1) of the Copyright Act, which led to failure to exhaust all necessary deliberations, and failing to exhaust all necessary deliberations, thereby adversely affecting the trial.

3. Therefore, without further proceeding to decide on the remaining grounds of reappeal, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)