Where an employee of a corporation acquires a reproduction of a program made in violation of a program copyright and uses it for business purposes, whether if the representative of a corporation does not directly acquire it and use it for business purposes, the act as prescribed in Articles 46(1)2 and 29(4)2 of the former Computer Programs Protection Act may be deemed to have been committed (negative), and where the representative knowingly knowingly acquired and neglected the use of reproduction of an employee, whether he/she may be punished as a sole principal offender for a violation of the same Act directly (negative)

Articles 29(4)2 (see current Copyright Act Article 124(1)3) and 46(1)2 (see current Copyright Act Article 136(2)4 of the Copyright Act) of the former Computer Program Protection Act (repealed by Article 2 of Addenda to the Copyright Act, Act No. 9625, Apr. 22, 2009)

Defendant 1 and one other

Defendants

Law Firm Jeongn, Attorney Cha Sung-hwan

Seoul Central District Court Decision 2009No549 Decided June 24, 2009

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

We examine the grounds of appeal.

1. According to the records, during the 8th trial of the first instance, the prosecutor applied for the modification of the bill of amendment to the provisions of Article 46 (1) 1 and Article 29 (1) of the Computer Programs Protection Act to "Article 46 (1) 2 and Article 29 (4) 2 of the Computer Programs Protection Act" during the applicable provisions of the Act during the 4th trial of the first instance court, and it can be known that the defendants consented thereto and the first instance court decided that permission should be granted. Thus, the judgment of the first instance court and the lower court in accordance with the amended provisions of the Act is just and there is no error in the misapprehension of legal principles as to the modification of the bill

2. A. According to Articles 46(1)2 and 29(4)2 of the former Computer Program Protection Act (amended by Act No. 9625, Jul. 22, 2009; hereinafter “former Act”), where a person who acquired a reproduction of a program made in violation of a program copyright knowingly uses it for business purposes, the person who acquired the reproduction of the program that was made in violation of the program copyright shall be punished. Thus, if a corporation’s employee knowingly acquired and used it for business purposes, and the reproduction of the program made in violation of a program copyright is not directly acquired and used for business purposes, the representative cannot be deemed to have committed an act as provided in the above Act. Even if a corporation’s representative knew of the acquisition and use of such reproduction for business purposes, even if the representative of the corporation knew of the acquisition of it and use it for business purposes, it shall not be punished directly as an offender under the above Act.

B. The summary of the facts charged against Defendant 2 is that the above Defendant violated the program copyright by reproducing the computer programs without authority at Defendant 1’s office on March 29, 2007, and according to the reasoning of the judgment below and the records, the reproduction of each computer program was directly installed and used for the business of developing the ARS program, including the Nonindicted Party, and Defendant 2 was not directly installed or used for the business. In light of the above legal principles, even if Defendant 2 neglected to instruct or neglect the reproduction and use of the computer program by the said Nonindicted Party, it can not be punished as the sole principal offender of the crime of violation of Articles 46(1)2 and 29(4)2 of the former Act against Defendant 2, and it should be specified how Defendant 2 specifically reproduced and used the program.

Nevertheless, without examining and determining such issues, the lower court found Defendant 2 guilty of all the charges against the Defendants solely on the ground that Defendant 2, as the representative director of Defendant 1 corporation, recognized and neglected part of the acts as indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on Articles 46(1)2 and 29(4)2 of the former Act, and thereby adversely affected the conclusion of the judgment. The grounds for appeal by the Defendants pointing this out are with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)