Where a CATV broadcasting business operator received a digital terrestrial broadcasting program of a terrestrial broadcasting business operator and re-transmissions to real-time subscribers, the case holding that it cannot be deemed that an urgent order to suspend re-transmission due to a provisional disposition is unnecessary.

In a case where a CATV broadcasting business operator received digital terrestrial broadcasts from a terrestrial broadcasting business operator and re-transmission them to real-time subscribers, the case holding that the aforementioned re-transmission constitutes a simultaneous re-transmission, not an act of receiving subsidies, and thus a terrestrial broadcasting business operator is recognized as a preserved right to seek the prohibition of re-transmission, but it is not necessary to urgently order the suspension of re-transmission due to a provisional disposition, on the ground that the long-term infringement

Articles 85 and 123(1) of the Copyright Act; Article 78 of the Broadcasting Act; Article 300(2) of the Civil Execution Act

[Plaintiff-Appellant] Plaintiff 1 and 2 others (Law Firm Gyeong & Yang, Attorneys Woo et al., Counsel for plaintiff-appellant)

C. C. C. C. C. C. H. (Law Firm Sc. et al., Counsel for the plaintiff-appellant)

1. The motion of this case is dismissed.

2. The costs of the lawsuit shall be borne by the applicant.

1. From September 23, 2009, the respondent shall not simultaneously re-transmit the broadcast signals of each digital terrestrial broadcasting indicated in the separate sheet to those who have joined the new respondent’s cable broadcasting products.

2. In case of violation of the above paragraph 1 above, the respondent shall pay 100 million won per day to the applicant who is the other party to the violation.

1. Case summary

The petitioners operate a terrestrial broadcasting business with the permission of each broadcasting station under the Broadcasting Act. The respondent is operating a multi-channel cable broadcasting business that provides broadcasting channels with more than 100 broadcasting facilities and transmission networks in Seoul Yangcheon-gu, with the permission of a "CATV Broadcasting Business" under the Broadcasting Act, depending on the type of products to subscribers.

However, the respondent is currently providing subscribers' home shopping and other channels for cable broadcasting through the above business, and the respondent is transmitting the broadcast signals of each digital terrestrial broadcasting listed in the separate sheet (hereinafter "the broadcast of this case") sent to the public through a terrestrial transmission tower on the ground, etc., and then directly or via the three-saws for digital cable broadcasting (Set-top Box and devices that appropriately convert the above signals from outside to indicate the contents by television) and then retransmitting them to the television owned by the subscribers.

2. Whether the copyright and neighboring rights are infringed;

A. The parties' assertion

(1) Applicant's assertion

The applicants hold not only the copyright of the program, but also the neighboring rights as a broadcasting business entity, by directly manufacturing the program transmitted through the instant broadcast or taking over the right to the program from the producer. Accordingly, the applicants have the exclusive right to reproduce the program in accordance with Articles 16 and 84 of the Copyright Act as the copyright holder or neighboring rights to the broadcast program, transmit it to the public in accordance with Article 18, or simultaneously relay the broadcast in accordance with Article 85.

Therefore, the Respondent's simultaneous re-transmission of the broadcast of this case without the consent of the Respondent constitutes infringement on the above rights of the Claimant.

(2) Respondent's assertion

(A) The Respondent’s re-transmission of the instant broadcast to subscribers is merely an act of assisting the reception of subscribers’ broadcast so that anyone can view free terrestrial broadcasts free of charge if he/she is a resident within the broadcasting zone, and it does not constitute an infringement on various rights under the Copyright Act of the applicants.

(B) The cable broadcasting service providers, including the respondent, have already been providing services for re-transmission of terrestrial broadcasts in accordance with the implied agreement with the applicants who want to resolve difficulties in viewing and guarantee the quality of broadcasting for more than a few hundred years, and the applicants have not raised any objection to re-transmission or requested payment of the price, and rather there have been only several requests for re-transmissions to cable broadcasting service providers for change of channel numbers or cooperation in the quality of broadcasting until now on the premise that they have the right to re-transmission. Thus, the request for suspension of re-transmission, such as the application of this case, is not allowed as a violation of the aforementioned implied agreement.

(C) Even though the applicant does not exercise his/her right by demanding the payment of the fee for broadcast signal only once a year, and the applicant does not have any particular benefit due to the suspension of re-transmission, demanding the prohibition of re-transmission as an abuse of right is not allowed.

(D) The respondent has the right to retransmitting the instant broadcast in accordance with Article 51 of the Copyright Act stating that “a broadcasting business operator intending to broadcast the work already made public for the public interest needs, after obtaining approval from the Minister of Culture, Sports and Tourism, may broadcast by paying the prescribed amount of compensation.”

B. The rights of the applicants under the Copyright Act

(i)Right of public transmission

The applicants may exercise the copyright to the broadcast program directly produced or taken over by others, and in this case the applicants are entitled to transmit or use the broadcast program by radio or wire communication for the purpose of public receipt or access by the public (including many and unspecified persons as well as many and specified persons. See Article 2 subparag. 32 of the Copyright Act). The right of copyright holders under the Copyright Act is the core point of the monopoly and reproduction. As such, the right of public transmission also includes the right of the applicants, the copyright holders, along with the right to directly transmit the broadcast program to the viewers, to allow the transmission of the broadcast program to the third party or to demand the prohibition of unauthorized transmission.

(2) Right of reproduction

In addition to the right to reproduce one’s own broadcasting program, the applicants have the right to allow reproduction to a third party or prohibit unauthorized reproduction of the program. However, Article 2 of the Copyright Act defines “reproduction” as “fixed on a tangible object or remaking it into a tangible object by means of printing, photographing, copying, sound or visual recording or other means,” so long as the respondent does not separately transmit the broadcast of this case and then store it in the storage device, it cannot be included in reproduction. The Copyright Act protects by the special public transmission right or the concurrent relay broadcasting right as to the act of providing another person with the broadcasting program in real time. Accordingly, the reproduction refers to a form of reproduction that does not fall under the scope of simultaneous re-transmission, such as the act of keeping the broadcast of this case in the storage medium and retransmitting it after the fact.

(3) Right of simultaneous relay broadcasting

Simultaneous relay refers to the receipt of broadcasting signals from another place at the same time and re-transmission to the outside. Accordingly, the applicants having the right to simultaneous relay broadcasting have the right not only to receive the broadcast signals sent by themselves to a certain area through the antenna installed in another area and re-transmission to the relevant area, but also to allow a third party to re-transmission or prohibit unauthorized re-transmission.

C. Whether the public transmission right has been infringed

The petitioner asserts to the effect that the respondent as a copyright holder of the broadcast program of this case shall exercise the right of public transmission as a kind of author's property right against the respondent.

As seen earlier, the broadcast program of this case consists of a variety of cinematographic works, and among which the applicants are entitled to copyright as seen earlier. However, the applicants cannot be a copyright holder with respect to certain copyrighted works, such as an external production program, advertiser, or advertising producer, which simply acquires only the right of use without taking over the copyright itself, and a certain copyrighted work, such as a commercial broadcast in which the applicants are holding the copyright, and thus, the applicants cannot be a copyright holder, and cannot exercise their neighboring rights, such as the right of simultaneous relay broadcasting, and may not exercise their right of public transmission directly as copyright. Moreover, various news programs fall under the category of “news reports only transmitting facts,” under Article 7 subparag. 5 of the Copyright Act and cannot be protected under the Copyright Act.

As above, the broadcast program of this case includes a broadcast program that the applicants cannot assert the right of public transmission. Thus, in order for the applicants to claim the suspension of re-transmission based on the right of public transmission, it is necessary to specify the program subject to the right. However, the applicants only seek a comprehensive prohibition against re-transmission of the broadcast of this case upon the application of this case, but do not specifically select the program intended to exercise the right of public transmission, and do not seek an individual prohibition against re-transmission. Thus, the materials submitted by the applicants alone cannot be deemed to have specified the cinematographic work in which the applicants have the right of public transmission. Thus, this part of the assertion is without merit,

D. Whether the reproduction right is infringed

(1) Right of reproduction as copyright

First of all, as to the right of reproduction as copyright, it is not allowed for the applicant to seek a comprehensive prohibition of re-transmission of the broadcast of this case, such as the application of this case, without specifying the broadcast program subject to the right of reproduction, as in the above determination on the right of public transmission.

(2) Right of reproduction as neighboring right

Next, the author argues that the respondent's "temporary reproduction" of the relevant broadcast for the purpose of converting broadcasting signals, such as radio frequencies, occurs in the course of retransmitting the instant broadcast as neighboring rights, and accordingly, the re-transmission of the broadcast has reached approximately two to three seconds’ television, compared to the case where the viewers directly receive the instant broadcast.

First of all, it is insufficient to recognize that the respondent has an act of keeping broadcasting signals in tangible objects, such as storage media, etc. in the course of re-transmission. Therefore, it is difficult to deem that there exists a "duplicating act" under the definition of

In addition, in light of the purport that the Copyright Act is divided into “right of reproduction” and “right of simultaneous relay broadcasting”, in principle, the provision on the right of simultaneous relay broadcasting can be applied to the act of retransmitting broadcasts in real time, and the so-called “retransmission” of retransmitting broadcasts after the fact.

However, in comparison with the length of individual broadcasting programs from a large number of minutes to a large number of hours, approximately 2-3 seconds constitute a short time when viewers are unable to feel a substantial difference from real-time broadcasting. In particular, it is difficult to view that the said broadcast program constitutes a “re-transmission” which re-transmits it after the completion of the specific broadcast program. As so, even if there is a difference between the original broadcast and several seconds in the process of re-transmission of the instant broadcast as asserted by the applicants, it is also included within the scope of the “actual re-transmission.” As such, it cannot be deemed that the “storage of broadcasting signals for re-transmission after the lapse of time” is included within the scope of the right of reproduction that takes the “storage of broadcasting signals for re-transmission” as its subject.

E. Whether the right to simultaneous relay broadcasting was infringed

(1) Receiving acts

The transmission of broadcasting signals is necessarily premised on the premise that the other party can receive it. In particular, in the case of terrestrial broadcasts using radio waves, insofar as the reception takes place within the broadcasting zone, there is no restriction on the recipient. Therefore, the simultaneous relay broadcasting right means the exclusive and exclusive right for broadcasting, and the other party’s act of receiving “receiving” cannot be restricted based on the said right.

In principle, the instant broadcast is received by transmitting broadcast signals collected from outdoor antenna through cables to television in individual households. In such a case, the antenna can be installed and used directly by individual households, and the antenna installed for the purpose of distributing broadcast signals to many persons, such as the facilities of the Public Notice Agency of Condominium Buildings.

(2) Aiding activities

As seen earlier, the act of receiving the instant broadcasts within the broadcasting zone does not infringe upon the rights of the applicants. As such, it is reasonable to deem that, in principle, the act of receiving goods or services for receiving broadcasting signals with or without consideration to allow the recipients to view a more convenient high-quality broadcasting screen is permissible as an “act of receiving assistance,” which assists the reception of viewers’ broadcasts. For example, the act of selling and installing antenna and its accessory facilities to the addressees, the provision of broadcasting signal transmission facilities for poor reception households, and the repair of the said various facilities, etc. can be deemed to be included in the area of receiving assistance. However, if such goods or services fall under an independent broadcasting business beyond the extent of assisting the reception of viewers, this is not permissible under the pretext of receiving assistance.

(3) The distinction between re-transmission and reception assistance

(A) Interpretation of relevant provisions

As seen earlier, the determination on the establishment of infringement on the applicant’s right to simultaneous relay broadcasting may vary depending on where the re-transmission of the instant broadcast is included in re-transmission and reception assistance. As such, it is necessary to distinguish between re-transmission and reception assistance.

Article 78 of the Broadcasting Act provides that Article 85 of the Copyright Act shall not apply to simultaneous re-transmission of a specific public broadcast (not included in the instant broadcast) among terrestrial broadcasts for which a CATV broadcasting business operator, such as the respondent, is obliged to simultaneously re-transmit a specific public broadcast ( not included in the instant broadcast). In principle, in the case of simultaneous re-transmission, the provisions on simultaneous relay broadcasting rights under the Copyright Act are applied to the simultaneous re-transmission, and the prior consent of the terrestrial broadcasting business operator is obtained. However, in the case of a specific public broadcast as provided by the Broadcasting Act, it can be interpreted that the said provision shall not apply

In light of the purport of the above provision and the purport of the Copyright Act and the fact that the limitation of property rights due to public necessity is not consistent with the constitutional principle that the effect of the simultaneous relay broadcasting right specified as a broadcasting business operator is necessary for the public interest such as resolving poor reception without any specific legal basis (the legislative authority may interpret that the broadcast of this case does not require public interest to allow free simultaneous re-transmission, unlike a specific public broadcast). As to the broadcast of this case to which the mandatory simultaneous re-transmission provision does not apply, the applicants are still able to exercise their rights under the Copyright Act. The respondent asserts to the purport that the re-transmission within the broadcasting zone needs to be freely conducted without any specific restriction because a CATV broadcasting business operator intends to re-transmission outside the broadcasting zone of the original terrestrial broadcasting business operator under Article 78(4) of the Broadcasting Act. However, the above provision argues that the terrestrial broadcasting business operator permitted to engage in broadcasting business only within a certain area is not required to prevent the expansion of the broadcasting zone through a bypassing method, thereby excluding the consent of the terrestrial broadcasting business operator in accordance with the civil special rule.

According to the purport of the record and examination, the respondent may recognize the fact that the specific public broadcasting which must be mandatorily re-transmission under the Broadcasting Act and the broadcasting of this case are re-transmission using the same method as a CATV broadcasting business operator. Thus, insofar as the re-transmission of the specific public broadcasting corresponds to the "Simultaneous re-transmission" under Article 78(1) of the Broadcasting Act, the legal nature of the re-transmission of the broadcasting of this case also constitutes not the "receiving assistance" as claimed by the respondent, but the "Simultaneous re-transmission." Thus, as seen earlier, Article 78(3) of the Broadcasting Act that limits the simultaneous relay of the broadcasting of this case does not apply exceptionally to the broadcasting of this case, the respondent must obtain prior consent from the applicant in order to re-transmission the broadcasting of this case.

(B) Analysis of re-transmission methods

On the premise that the re-transmission method of the above specific public broadcasting constitutes the "Simultaneous re-transmission" as provided by the Broadcasting Act, the legal nature of the broadcasting of this case was recognized as the "Simultaneous re-transmission" on the ground that the re-transmission method of the broadcasting of this case is the same as that of the above public broadcasting. However, in full view of the major features appearing in the process of the re-transmission of the broadcasting of this case, the conclusion that the re-transmission constitutes the "re-transmission" requiring the prior consent of the applicants can be reached.

(1) A management authority of receiving facilities

In order for the re-transmission of broadcasting signals to constitute “re-transmission” rather than “re-transmission”, it is insufficient to say that there is a technical act of receiving broadcasting signals and simply transmitting them to the addressee. In light of the general concept of society, the actor should be deemed to have sent broadcasting signals to the addressee’s territory, independent from the addressee. Therefore, it is difficult to deem that the act of an addressee’s acting for the addressee’s intent or receiving and transmitting broadcasting on behalf of the addressee constitutes simultaneous relay broadcasting prohibited under the Copyright Act (see Supreme Court Decision 2008Do1724, Sept. 11, 2008, etc.).

However, according to the records, unlike the common reception facilities established in apartment units under the autonomous management according to the tenant's resolution, the respondent sent a channel exclusive for cable broadcasting for the purpose of earning business profit through the collection of receiving fees, etc., and provided the service of re-transmission to subscribers after having received the instant broadcast with the related facilities such as antenna independently in order to absorb the terrestrial broadcasting community into the subscribers. Accordingly, the facilities for receiving the instant broadcast are managed independently by the respondent, and the subscriber can only choose whether to use the services provided by the respondent, and it can be recognized that there is no authority to decide whether to install the above receiving facilities directly or not. Thus, since the internal re-transmission and re-transmission conducted by the respondent are remarkably different from the main body of the facilities, it is difficult to see that the respondent act on behalf of the subscriber or re-transmission the instant broadcast on behalf of them by applying the logic of permission for the apartment joint reception facilities as it is, as it is, the logic of allowing the apartment facility.

(ii) The degree of processing radio waves;

The purpose of receiving a broadcast signal is to overcome the inconvenience such as the reduction of the quality of a broadcast and the distortion of screen by receiving the broadcast signal in question at the time of transmission at a broadcasting station. Thus, in principle, the broadcast signal transmitted by a terrestrial broadcasting station without processing the radio wave, i.e., it is necessary to transmit it to the receiver. Even if it is necessary to process the radio waves due to domestic distress, this is limited to the minimum measures required to enable a normal viewing of broadcasting, such as the increased emission of radio waves, and therefore, changing the major characteristics of the broadcast signal is not included in the scope of receiving aids.

According to the overall purport of the record and hearing, the respondent does not retransmitting the broadcast of this case to the subscriber as it is, but rather, provide virtual channels to the broadcast of this case, and, in particular, put a relatively more profitability than other cable broadcasting exclusive channels, processes the broadcast of this case and the broadcast signals for the purpose of providing them as a product by combining a number of channels exclusively used for broadcast and a large number of cable broadcasting channels. This goes beyond the scope of the reception assistance to the receiver without maintaining the basic characteristics of the broadcast signals.

(iii) the existence of consideration for broadcast reception;

The fact that a broadcasting facility-related business entity simply installs, maintains, or repairs a common receiving facility, such as antenna, and receives the price, does not normally be deemed to have run a simultaneous re-transmission business as prescribed by the Broadcasting Act by including it within the scope of the facility works, but it is highly probable to regard it as constituting a simultaneous re-transmission business, in addition to the construction cost or facility management and maintenance cost.

However, according to the purport of the record and examination, the respondent may recognize the fact that the respondent receives user fees set between KRW 4,000 to KRW 33,00 per month according to the type of cable broadcasting products in return for providing all broadcasting channels, including the instant broadcast to subscribers. The monthly fixed user fees seems not to have a direct correlation with the actual cost incurred in the management of receiving facilities. As seen above, insofar as the respondent is not paid the amount equivalent to the actual cost incurred in the management and maintenance of receiving facilities, even if the above monthly user fees are indirectly included in the above monthly user fees, the respondent can be deemed to have collected the “View fee” from the subscribers through the retransmission of the instant broadcast program using the said facilities.

Thus, it is reasonable to view that the respondent's re-transmission of digital terrestrial broadcasting violates the applicant's right to simultaneous relay broadcasting by receiving and processing the instant broadcast signals through its own facilities and including them in the respondent's broadcasting services.

E. Whether an implied agreement on re-transmission has been reached

According to the overall purport of the record and examination, the Cable Broadcasting Act was enacted on August 24, 1961 for the purpose of resolving difficulties in viewing TV broadcasts and ensuring the quality of terrestrial broadcasts (mainly applied to radio broadcasts at the time of their proposal, but it was also applied to television broadcasts at the late 1960s), and then the CATV relay broadcasting business operators received and simultaneously re-transmitd TV broadcasts to subscribers. On December 31, 1991, the Cable Broadcasting Act was enacted for multi-channels, and the said Act was enacted, and the CATV relay broadcasting business operators were also simultaneously re-transmission with the previous CATV relay broadcasting business operators. Since the establishment of March 31, 195, the respondent also operated the simultaneous re-transmission business, and the applicants were working for a specific CATV relay broadcasting business operator or an organization of CATV relay broadcasting business operators, including the respondent, for a considerable period of time prior to the suspension of re-transmission under the premise that they were granted a specific frequency of re-transmission or conducted under the premise that they were given to the applicants for re-transmission.

However, even if there is room to interpret the above applicant's act as an implied act of re-transmission, it cannot be viewed as a comprehensive waiver of the right to exercise in the future. As seen earlier, there is no room to recognize the applicant's implied consent in the present situation where the applicant explicitly demanded the respondent to suspend re-transmission on July 2008 and filed the instant application to enforce it.

However, there is room to deem that the respondent has a right to continue re-transmission, despite the express objection of the petitioner, if there are special circumstances, such as the respondent's act of re-transmission beyond simply silenting the situation of the respondent's re-transmission at a certain time in the future or for a certain period. However, it cannot be said that the respondent has agreed not to raise any objection against re-transmission in the future on the sole basis of the implied act of re-transmission conducted by the applicant as seen earlier. Thus, this part of the respondent's assertion is without merit.

F. Abuse of rights

In order for a right holder to exercise his/her right over a long-term period of time and thus it is not permitted to exercise his/her right as a result of a violation of the principle of trust and good faith, there exist justifiable grounds to believe that the other party, who is the obligor, should no longer exercise his/her right. In this case, the applicant has not been involved in re-transmission of CATV broadcasting business operators for a considerable period of time. However, as seen earlier, it is difficult to deem that the respondent does not have justifiable grounds to believe that the applicant would not exercise his/her right to simultaneous relay over a long-term period of time. Therefore, the applicant’s exercise of right is difficult.

In addition, if the exercise of the right is to cause pain and damage to the other party, and there is no benefit to the person who exercises the right, and if it can be viewed that it violates the social order objectively, the exercise of the right is not allowed as an abuse of right.

The respondent asserts to the effect that the respondent's re-transmission of the broadcast of this case allows more people to view high quality broadcasting within the broadcasting zone so that the applicants can obtain more advertising revenues, which is not a beneficial act without causing any damage to the applicants, but it is not allowed for the applicants to seek the prohibition as an abuse of rights.

However, as seen earlier, the applicants can be allowed to re-transmit the instant broadcasts without permission by copyright and by receiving a certain fee from a third party. As such, the respondent may be deemed to have suffered considerable damages to the applicants through re-transmission of the instant broadcasts without permission. However, no more thanks to re-transmission may deny the effect that many people can easily view the instant broadcasts. On the other hand, viewers can receive not only the instant broadcasts but also the channels exclusively used for cable broadcasts by joining the instant broadcast. In addition, as the sales of the channels exclusively used for cable broadcasts or the increase in the market share of the broadcast, the reverse effect of relatively decreasing the sales of terrestrial broadcasts may occur. In particular, according to the purport of the record and examination, a large number of subscribers of CATV broadcasts are recognized to have subscribed to the CATV broadcasting in order to view the terrestrial broadcasting as a clean screen rather than the viewing of the channels provided by the CATV broadcasting companies (Korea Communications Commission’s survey conducted against subscribers on July 207, 2007, it cannot be said that there is much any other motive to resolve the number of subscribers to re-transmission, etc.

In addition, according to the records, the applicants have previously permitted the simultaneous re-transmission of terrestrial broadcasts by receiving a certain fee from the previous satellite broadcasting business operators and the Internet broadcasting business operators. In recent years, the applicants raise an objection against the failure of the applicants to collect any price for the simultaneous re-transmission from the poisonous CATV broadcasting business operators, and may recognize the fact that the applicants demand to change the terms and conditions of the contract or refuse to pay the fee.

Considering the above circumstances, it is difficult to regard the instant application as abuse of rights that constitutes an abuse of rights where “the purpose of the instant application is to inflict pain and damage on the other party, and there is no benefit to the person who exercises the right.”

(g) Whether the statutory license system is applied

Where a broadcasting business operator intends to broadcast a work already made public pursuant to Article 51 of the Copyright Act for the purpose of public interest, he/she may make a broadcast after obtaining approval from the Minister of Culture, Sports and Tourism, by paying compensation according to the standards set by the Minister of Culture, Sports and Tourism to the holder of author’s property right, notwithstanding objection, and Article 89 of the Copyright

However, the above statutory license system for copyright or neighboring rights applies to the case where a work already completed is used after the language and text of the provision itself. The re-transmission of the instant broadcast constitutes a case where the re-transmission is actually used by the original broadcast and the same time, and thus, it does not, in principle, be subject to the statutory license system.

In addition, there is no evidence that the respondent obtained the approval of the Minister of Culture and Sports for the re-transmission of the broadcast of this case or paid the prescribed compensation on the record, so there is no room for the re-transmission of the respondent to be justified by the statutory license system.

H. Conclusion on preserved rights

Thus, the applicants have the right to seek a prohibition of re-transmission against the respondent based on the simultaneous relay broadcasting right to the broadcast of this case, and there is no other justifiable ground for the respondent to re-transmit the broadcast of this case. Thus, the application of this case is recognized as the preserved right.

3. Necessity of preservation; and

A. Applicant's assertion

Since the number of subscribers of digital cable broadcasting including the respondent increases rapidly, damage caused by digital terrestrial broadcasting has been expanded, and in the event of waiting until the judgment on the merits became final and conclusive, it may be difficult for many viewers who have joined the digital cable broadcasting to exercise the right of prohibition against the occurrence of damage and counter-harm. Therefore, the applicant asserts that there is a need to preserve the right of prohibition against re-transmission due to provisional disposition.

B. Determination

(i)the long-term implied consent to re-transmission;

(A) A provisional disposition that determines a temporary position is an urgent and provisional disposition that is allowed only when it is necessary to avoid significant damage or prevent imminent danger, and thus, it is difficult to recognize a necessity to seek a preservative measure when a situation to be removed from a preservative measure has been left for a long time by a creditor. If the petitioner has neglected such situation without any measures for a long time even though he/she recognizes the infringement of the respondent, the need to obtain a preservative measure cannot be acknowledged (see Supreme Court Order 2003Ma482, Aug. 19, 2005).

(B) However, as seen earlier, a CATV relay broadcasting business operator has already run the re-transmission business since the 1960s, and a CATV relay broadcasting business operator has been established in 191, and the respondent has re-transmission to subscribers for 14 years since its establishment in 1995, and even though the applicants have been aware of the fact that the re-transmission is widely conducted, they did not take any legal measures against the respondent for about 13 years until the request for the suspension of the re-transmission of the instant broadcast was made by a CATV relay broadcasting business operator around July 2008.

(C) The petitioner asserts to the effect that the object of a long-term re-transmission is a “arche broadcast” and the object of the instant application is a “digital broadcast,” and that there is no need to consider the matters related to the broadcast in determining the necessity of preserving the instant application. However, according to the record, there is only a difference between the technical elements of the digital broadcast and the Arabic broadcast signal, and there is no substantial difference between the form and content of the broadcast program itself. In particular, regardless of the digitalization of the broadcast signal, there is no change in the fact that the cable broadcasting business operator received the broadcast signal using the receiving equipment by the terrestrial broadcast and included it in the cable broadcast and sent it to the subscriber. In other words, regardless of whether the broadcast signal is digitalized, there is no difference in the form and content of the broadcast program itself. In other words, the form of infringement of the simultaneous relay broadcasting rights of both broadcasts is the same. Thus, the applicants do not have any new infringement of rights that had not been converted from the broadcast form to the digital broadcast, and thus, the fact that the broadcast was an implied re-transmission of the broadcast for a long-term can be considered in determining the necessity of the instant application.

(D) Furthermore, according to the overall purport of records and interrogations, CATV broadcasting business operators including the respondent have already re-transmissioned them from 2002 and the applicants have not taken any legal measures against them for about six years (However, even if some of the applicants were to negotiate with a CATV broadcasting business operator since 2007, it is difficult to recognize the imminent risk of suspending the re-transmission due to a provisional disposition in that they had already been negotiated with a CATV broadcasting business operator for about five years since the start of the digital broadcasting business, and that the re-transmission has already been conducted in the state of maintaining the re-transmission as well as for five years after the start of the digital broadcasting business operator).

(E) Comprehensively taking account of the above circumstances, there is no need to make a provisional disposition setting forth a temporary status, such as that the re-transmission of the instant broadcast continues for a certain period and there is a risk of considerable damage to the applicants.

(2) Profit balancing

(a)The possibility of simplification of re-transmissions;

In order to prevent damage to existing cable broadcasting subscribers due to the suspension of transmission of digital terrestrial broadcasts, applicants asserts that the suspension of simultaneous re-transmission was sought only for new subscribers after the date of service of the application for provisional disposition of this case.

According to the purport of the record and examination, the respondent does not separate only the signal on the channels included in the product selected by the subscriber and not transmitting the subscriber concerned, but transmits the same signal with the broadcast signal and digital broadcast signal for all subscribers regardless of whether the subscription product is a ro-day broadcast or a digital broadcast, and accordingly, if a subscriber holds digital television even if he is a subscriber of an ro-day broadcast, he may view digital terrestrial broadcasts. However, digital broadcast subscribers are allowed to view digital terrestrial broadcasts with digital broadcast-only channels by using digital set-to-faces, which are received from different parties to an ro-day broadcast company, and generally, digital cable broadcasts are allowed to view digital cable broadcasts by linking the cable with a ro-saw broadcast company, but they can not view digital cable broadcasts by directly linking the ro-day cable broadcasting with a ro-day cable, like an Aro-day broadcast (However, if possible, digital cable broadcasts are not allowed to view digital TV broadcasts).

However, since the respondent sends the same broadcasting signal to all subscribers, it seems that the failure of the broadcast of this case to send the broadcast of this case to the new subscribers separately from the existing subscribers would be technically difficult or possible, even if it is possible to do so. In this regard, the applicant asserts to the purport that the new subscribers may block access to the broadcast of this case even if it does not affect the existing subscribers by installing a program that restricts the reception of the broadcast of this case to the new subscribers. However, this method is premised on the case where the subscribers view the broadcast of this case through the three saws, and thus, it cannot be prevented even to view the broadcast of this case by directly connecting the television of this case by the subscribers, and on the same grounds, the above method cannot be applied to the households that subscribe to the broadcast of this case for the same reason.

Ultimately, it is insufficient to recognize that the data submitted by the applicants alone can be easily realized to completely block the re-transmission of the broadcast of this case only for the existing subscribers by distinguishing the existing subscribers from the new subscribers, such as the instant application. Therefore, if the instant application is accepted, the respondent is inevitably likely to inevitably suspend re-transmission to the existing subscribers in order to prevent the re-transmission of the instant broadcast.

(b)the need to make up for satisfactory provisional disposition;

According to the above circumstances, the application of this case can be deemed to have its purpose in obtaining a final satisfaction of the right, such as the winning in the lawsuit on the merits. Thus, in order to accept such satisfactory provisional disposition, there is a clear and strong explanation about the necessity of preservation, compared to the case of the general provisional disposition that determines the temporary position, and in principle, the realization of the simultaneous relay broadcasting right held by the applicant should be based on the compulsory execution based on the judgment on the merits.

The applicants have continued business activities on the premise of the re-transmission for a considerable period of time, and there is also a lack of evidence as to the fact that the business balance of the applicants has rapidly deteriorated due to the re-transmission in the records. Accordingly, the respondent continued to engage in re-transmission prior to the judgment on the merits, which does not seem to have a significant impact on the applicant's business maintenance.

On the other hand, as seen earlier, most of the subscribers to composite cable broadcasting are designed to view terrestrial broadcasting in a clean manner, and a considerable portion of the operating profit of a composite cable broadcasting business is obtained from the home shopping channel where the terrestrial broadcasting channel is placed between the terrestrial broadcasting channel. In particular, in the case of the respondent, as of August 2009, the digital broadcasting program holder among the total subscribers has been 30% or more of the total subscribers based on the horse around the end of August 2009. Accordingly, once a provisional injunction is granted, the respondent is highly likely to cause serious trouble in business due to a decrease in sales due to the withdrawal of the subscription. If the interests of both parties in accordance with the provisional injunction is compared, it is difficult to recognize the need to order the suspension of re-transmission due to the temporary injunction.

(c) Equity with other CATV broadcasting business operators;

According to the records, more than 90 CATV broadcasting business operators are currently operating across the country, most of the services provided by them include re-transmission of the broadcast of this case, and the respondent only belongs to one of the larger companies among CATV broadcasting business operators and does not have any special difference between the respondent and other companies.

However, other CATV broadcasting business operators seek a provisional disposition ordering the suspension of re-transmission only against the respondent, and unlike other business operators, it is difficult to deem that there is a risk of considerable damage or imminent danger to the applicants due to the re-transmission of the instant broadcasts. Moreover, even if the respondent ceases the re-transmission of the instant broadcasts upon acceptance of the instant application, considering the fact that the respondent can continue the re-transmission prior to the judgment on the merits, the purpose of the applicants cannot be actually achieved to prevent the sudden increase of the digital cable broadcasting subscribers upon the instant application, and rather, the respondent may not be deemed to have been able to actually achieve the objective of the applicants that would prevent the rapid increase of the digital cable broadcasting subscribers.

In light of equity between the respondent and other companies as above, it is difficult to take a proper way to resolve disputes to issue a provisional disposition that selects a certain company as a model case with respect to the re-transmission problem of digital terrestrial broadcasting which has been conducted for a long time and which has a significant interest in the survival in the broadcasting market. Considering that the applicants are seeking a remedy for the remaining companies other than the respondent through a lawsuit on the merits, not a provisional disposition against the respondent, it cannot be deemed that there is any particular obstacle to exercising their rights after the judgment on the merits only for the respondent became final and conclusive. In this regard, it is not necessary to promptly order the respondent to suspend re-transmission due to a provisional disposition.

4. Conclusion

Therefore, the application of this case is likely to be recognized as the preserved right, but it is not enough to vindicate the necessity of preservation. Therefore, it is dismissed and it is so decided as per Disposition.

Judges Parkdae-dae (Presiding Judge)