Plaintiff (Law Firm Sang, Attorney Park Young-young, Counsel for the plaintiff-appellant)

Jeon Media Co., Ltd. (Attorney Jeon Young-young, Counsel for defendant-appellee)

May 29, 2013

Suwon District Court Decision 2012Gahap37 decided June 14, 2012

The part against the defendant in the judgment of the first instance shall be revoked.

The plaintiff's claim against the cancellation is dismissed.

All costs of the lawsuit shall be borne by the plaintiff.

Purport of claim

The judgment confirming that the Defendant does not have all rights recognized as neighboring rights, such as the right of reproduction, distribution, lease, transmission, etc. of music records for musical works listed in the attached list.

Purport of appeal

The same shall apply to the order.

1. The summary of the case and the facts premised on the case

A. Case summary

The instant case seeks to confirm that the Defendant, who had engaged in the production of a music recorded in the music recorded in the [Attachment List (hereinafter “the instant music record”), directly singing out or singing in the music recording process, etc., provided funds, etc. necessary for the production of the music record, and sold and sold the completed music and received the rights to the music record in the order of priority, is attributed to the Plaintiff by asserting that all the rights recognized as neighboring rights, such as the right of reproduction, distribution, lease, transmission, etc., of the music record, are attributed to the Plaintiff who produced the music, and that there is no right recognized as neighboring rights, such as the right of reproduction, distribution, lease, transmission, etc., of the music record, belongs to the Defendant.

The court of first instance rejected the Plaintiff’s claim for confirmation of the absence of the right of reproduction, distribution, lease, and transmission, and rejected the part seeking confirmation of the absence of neighboring rights, such as the right of performance, on the ground that there is no interest in seeking confirmation of the absence of neighboring rights. The Defendant filed an appeal against the lost part (the subject of examination by the court is limited to the claim for confirmation of the absence of the right of reproduction, distribution, lease, and transmission, which is held in the position of the person who recorded the sound recording of the instant sound record).

B. Presumed factual basis

[Evidence A] 1, 2, 5, A6-1, 2, 7, A12-3, 4, 5, 7 through 26, 32, 33, 37, 38, 39, 1, 3, 8, and Non-Party 2

(i)The Party;

Since the Plaintiff recorded a music record called “▽▽▽▽▽△” in around 1958, the Plaintiff is the number of writers and writers who participated in the creation of approximately 45 music by means of writing, writing, singing, singing, singing, singing, or directly citing the music, and the Defendant is a company aimed at producing and selling the music record.

B. The production of the original record of the instant sound records and the cost-bearing thereon

㈎ 이 사건 음반의 원반은 모두 1968년 무렵부터 1987. 7. 1. 이전까지 사이에 녹음되어 만들어졌다.

㈏ 이 사건 음반의 원반에 수록된 악곡은 대부분 원고가 직접 작사, 작곡, 편곡한 것으로서 원고가 이 사건 음반의 원반을 녹음할 당시에 원고가 구성한 밴드(악단)가 악곡을 직접 연주하거나 원고가 직접 노래를 부르는 방법 등으로 원반을 제작하는데 직접 관여하였다.

㈐ 소외 1(대판:소외인)는 “○레코드”라는 상호로 음반사를 운영하면서 원고의 악곡들을 수록하여 녹음한 이 사건 음반의 원반을 만드는 과정에서 원고에게 악곡을 연주하여 녹음하는 데 필요한 녹음실을 제공하는 등 원반을 제작함에 필요한 원반의 제작비용을 모두 부담하였고, 이처럼 만든 원반을 복제하여 음반을 배급하여 판매하였다.

【Defendant’s acquisition of the original right on the instant sound records

On July 10, 1993, the non-party 1 (the non-party 1: the non-party 2) transferred to the non-party 2 all the rights related to the writing, including the right to reproduce and distribute the originals of all the records produced including the originals of the records of this case, and the non-party 2 transferred on September 12, 1993, the non-party 1 (the non-party 1: the non-party 2 transferred the right to the non-party 1 to the defendant on August 1, 1996.

2. Issues of the instant case

A. The nature of the right to sound records made at the time of the former Copyright Act (wholly amended by Act No. 3916 of Dec. 31, 1986; hereinafter the same shall apply)

B. Whether the right of reproduction, distribution, loan, and transmission held by a person who recorded the instant sound record belongs to the Defendant

C. Whether the copyright term of the instant phonogram has expired

D. Whether the plaintiff's consent to transfer of copyright to the records of this case is necessary

3. The judgment of this Court

A. Contents of the rights prescribed in the former Copyright Act with respect to phonograms made at the time of the copyright Act

【Plaintiff’s Claim】

The plaintiff asserts that the music records produced before July 1, 1987 are only copyright under the former Copyright Act, and that the neighboring rights under the current Copyright Act do not recognize the rights of the music record producer.

[Judgment]

(1) The former Copyright Act cited music records as one of the copyrighted works (Article 2), and the author has the right of publication to reproduce and distribute the copyrighted records (Articles 8 and 18). However, the former Copyright Act, which was completely amended by Act No. 3916, Dec. 31, 1986; enacted on July 1, 1987 (hereinafter “1987 Copyright Act”), provides that music records are fixed in a tangible object and are first fixed in a music record (Article 2 subparag. 6 and 7), and that music records are protected as neighboring rights (Article 61 subparag. 2 of the former Copyright Act). Under the former Copyright Act, music records are still protected by the former Copyright Act for the first time by providing that music records are reproduced and distributed as neighboring rights (Article 67 of the former Copyright Act). Under the former Copyright Act, music records are protected by the former Copyright Act for the first time by the broadcasting business operator for the first time by providing that music records are reproduced and distributed as neighboring rights (Article 87 of the former Copyright Act).

According to the provisions of the Sheet and the facts of the premise as seen earlier, the former Copyright Act, as regards the phonogram fixed with the sound, has protected the sound itself as one of the copyrighted works, not as the neighboring rights, but as the original part of the sound in this case was recorded and produced on or before July 1, 1987, and the person who recorded the sound in the sound in this case, applied the former Copyright Act, has the copyright (the right to reproduce and distribute the sound in this case) against the original part of the sound in this case pursuant to the former Copyright Act, rather than the producer’s right to the sound in this case. Accordingly, this part of the Plaintiff’s assertion is with merit.

B. Whether the right of reproduction, distribution, loan, and transmission owned by a person who recorded the instant sound record belongs to the Defendant

【Defendant’s Claim】

The defendant asserts to the effect that, since the non-party 1 (the non-party 1) made the plaintiff a music, or planned and produced the music record containing the music record at the expense of the non-party 1 (the counter-party 1) and distributed it, the producer who recorded the music record of this case is the non-party 1 (the counter-party 1) and the defendant who acquired all the author's property rights related to the copyright of this case from the non-party 1 (the counter-party 1) in the order of taking over the copyright of this case by the non-party 1 (the counter-party 1) has the right of reproduction, right of distribution, right of lease, and right of transmission (the substantially same as the author's property rights under the current law) as to the music record of this case (the music record of this case to which the former Copyright Act applies is obvious that neighboring rights under the current Copyright

【Counterclaim by the Plaintiff】

The Plaintiff, as the copyright holder of the instant sound recording, reads all the musical music recorded in the instant sound recording, and in the process of recording, the Plaintiff directly connected the musical music of the instant sound recording. The Plaintiff himself/herself singing out part of the instant sound recording, and led the Plaintiff to the entire process of producing the sound recording, such as writing, lending, and transmitting the musical music that the Plaintiff has the right of reproduction, distribution, rental, and transmission (the right in the position of the phonogram producer under the current law) as the copyright holder of the instant sound recording (the Plaintiff’s assertion also belongs to the Plaintiff as the copyright holder).

[Judgment]

(i) The following facts may be acknowledged in full view of the entire arguments in evidence (A, 1, 2, 2-3, 4, 5, 7-26, 32, 33, 37, 38, 39, 15, 1, 3, 4, 5, 8, 10, 11, 12-1, 12-2, 17-1, 2, 18, 19-1, 2, 2, 23-1, 24-2, 24-1, 24, and 2).

㈎ 소외 1(대판:소외인)은 ○레코드라는 상호로 1960년대 후반부터 음반 관련 사업을 하고 있었다.

㈏ 소외 1(대판:소외인)은 원고와 원고가 구성한 밴드를 비롯하여 이른바 ‘원고 사단’으로 불리던 소외 3, 소외 4, 소외 5, 소외 6, 소외 7, 소외 8뿐만 아니라 소외 9, 소외 10의 음반을 녹음한 다음 상품으로서 판매용 음반을 만들어 팔았다.

㈐ 이 사건 음반에 수록된 악곡 대부분이 원고가 작사, 작곡, 편곡한 것이고, 이 사건 음반 중 별지 목록 순번 1, 2, 20, 21, 27번 음반에 수록된 일부 악곡은 다른 사람이 작사, 작곡하였다(원고는 제1심 2회 변론기일에서 이 부분 곡에 대해서는 청구취지에서 제외하는 것으로 청구취지를 감축하였다). 소외 1(대판:소외인)은 이 사건 음반에 관한 원반을 제작하기 위해서 원고에게 작사비와 작곡비를 일부 미리 지급하기도 하였다.

㈑ 이 사건 음반의 원반을 녹음할 당시 원고가 구성한 밴드가 악곡을 연주하기도 하고 원고가 직접 노래를 부르기도 하였으나 악곡 녹음에 필요한 녹음실은 소외 1(대판:소외인)이 제3자로부터 직접 임차하고 그 비용을 부담하는 등 원반을 녹음하거나 제작함에 필요한 모든 제작비용을 부담하였다. 그리고 소외 1(대판:소외인)이 녹음과정에 참석하여 음악과 관련한 의견을 밝히기도 하였다.

㈒ 소외 1(대판:소외인)은 음반의 녹음이 끝나면 녹음실로부터 원반을 건네받아 LP(Long Playing Record) 음반에 수록되는 악곡의 개수나 시간을 맞추기 위하여 녹음된 악곡의 전주나 간주 부분 또는 후렴 부분을 잘라내어 악곡의 시간을 LP 음반에 맞추어 조정하는 작업을 하였다.

㈓ 소외 1(대판:소외인)은 원반을 기초로 상품으로 만든 음반을 소비자에게 팔기 전에 임시로 편집하여 만든 데모음반을 만들어 방송국 PD나 음반 도매상에게 보여주고 그들로부터 앞으로 판매할 예정인 음반에 대한 평가나 의견을 듣기도 하였다.

㈔ 소외 1(대판:소외인)은 별지 목록 순번 9 음반에 수록된 소외 5가 부른 “△△ △△△”를 원고의 원곡과 다르게 다른 사람에게 편곡을 맡겨 음반에 녹음하여 수록하는 등 음반의 상업성을 추구하면서 원고의 의도와 달리 음반을 제작을 기획하기도 하였다.

㈕ 소외 1(대판:소외인)은 구 음반에 관한 법률(1991. 3. 8. 법률 4351호로 폐지)에서 규정한 음반사 등록요건을 갖추지 못하여 음반사(□□, ◇◇◇◇, ☆☆☆ 등)를 통해 이 사건 음반을 팔았고, 별지 목록 순번 13에서 17, 19에서 23 음반과 같이 음반 표지에 'KLS'로 시작하는 일련번호를 표시하기도 하였다.

㈖ 이 사건 음반 중에는 그 표지에 ‘원고 작사·작편곡’, 원고 작편곡‘, '원고 작곡집’, ‘원고 작편곡집’이라고 표시된 것도 있으나, 원고를 음반을 녹음한 음반제작자로 표시하지는 않았다.

In the lawsuit of passive confirmation, where the plaintiff first claims that the cause of the right, etc. is denied by specifying the right, legal relation, which is the subject matter of the lawsuit, it constitutes not a claim but a prior part of the defendant's defense (see Supreme Court Decision 97Da45259, Mar. 13, 1998). Therefore, the defendant's assertion that the defendant lawfully acquired the right to the music record from the non-party 1 (the non-party 1: the non-party 1 (the non-party 1) in the order of legitimate acquisition of the right to the music record of this case as the copyright holder of the music record of this case, and the non-party 1 (the fact of the cause of the copyright), the defendant must prove and prove that the non-party 1 (the non-party 1) acquired the right to the music record of this case in the order of acquisition of the right to the copyright

Meanwhile, unlike the Copyright Act of 1987, the former Copyright Act, which provides that a phonogram producer is the first person who has first fixed the sound on a phonogram, did not stipulate any provision regarding the copyright holder of the phonogram as one of the copyrighted works. However, since the former Copyright Act protects the phonogram itself as one of the copyrighted works, it is reasonable to view that a person who lawfully recorded a sound recording on a sound recording in which another person’s copyrighted work is systematically reproduced the sound as one of the copyrighted works at the time of the application of the former Copyright Act has a new copyright on the sound recording separately from the copyright of the musical work. Here, the copyright holder of the sound recording itself is not a person engaged in physical recording but a person who recorded a sound on his/her own account and responsibility and bears the cost necessary for the sound recording at the time of producing the original tape.

According to the facts found above, the non-party 1 (the non-party 1) paid part of the price for producing or singing the plaintiff. The non-party 1 (the non-party 1) paid all the production costs necessary for producing the original phonogram by leasing and providing it to the plaintiff. The non-party 1 (the non-party 1) held the original tape and entered into a contract with the records company and sold the commercial phonogram, which is a product, through the records company. Therefore, the copyright holder of the records of this case had reasons for the defendant's assertion that the copyright of the records of this case belongs to the non-party 1 (the non-party 1) as the copyright holder of the records of this case, since the non-party 1 (the non-party 1) was entitled to the non-party 1 (the non-party 1) as the copyright holder of the records of this case's own right to reproduce and distribute the records of this case.

C. Whether the duration of the copyright of the instant phonogram has expired

【Plaintiff’s Claim】

The Plaintiff asserts to the effect that, even if Nonparty 1 (the Nonparty 1) has the initial copyright on the instant sound records, the copyright acquired by the Defendant in the order of Nonparty 1 (the Nonparty 1) has expired, since the instant sound records were sold in the name of the representative of Nonparty 1 (the Nonparty 1 (the Nonparty 1) such as the Red Code Corporation, chip code Corporation, etc., and the copyright was extinguished upon the lapse of 30 years from the date of sale of the sound records pursuant to the former Copyright Act.

[Judgment]

(i) In full view of the evidence (A12-3, 4, 5, 7 through 26, 32, 33, 37, 38, 39, 15, 21-1, 24-1, 24-1, and Nonparty 2, the following facts may be acknowledged.

㈎ 소외 1(대판:소외인)은 ○레코드라는 음반사를 운영하면서 음반을 제작하여 판매하였으나 음반사 등록 요건을 갖추지 못하여 등록된 음반사인 □□, ◇◇◇◇, ☆☆☆ 등의 음반사를 통해 이미 녹음한 원반을 기초로 판매용 음반을 복제한 후 이 사건 음반을 판매하였다. 이 사건 음반의 표지에 □□, ◇◇◇◇, ☆☆☆ 등의 음반사가 표시되어 있으나, □□, ◇◇◇◇, ☆☆☆ 등의 음반사가 이 사건 음반 제작에 직접 관여하지는 않았다.

㈏ 소외 1(대판:소외인)은 2008년 이후에 사망하였다.

According to Article 30(1) of the former Copyright Act, the copyright shall continue to exist during the life of the author and for thirty (30) years after the date when the author is alive (Article 30(1)), the copyright of a work published or publicly performed by a government office, school, company, or other social organization as the author shall continue to exist for thirty (30) years after the date of publication or public performance (Article 33). In calculating the duration of the copyright, the copyright shall begin from the year following the date when the author died or the work is published or public performance (Article 39). Meanwhile, the former Copyright Act, as amended in 1987, newly established the provision on neighboring rights, was established for twenty (20) years from the year following the date when the sound was first fixed in the music record (Article 70), and the term of protection under the former Copyright Act shall continue to be more than the term of protection under the former Copyright Act (Article 187 of the former Copyright Act).

Article 22(1) of the former Copyright Act provides that “The term “the term “the term “the term “the term “the term “the term “not” refers to the term “the term “the term “which” refers to the term “the term “the term “or” refers to the term “the term “or” refers to the term “or the term “or” refers to the term “or” refers to the term “or” and “the term “or” refers to the term “or” and “the term “or” refers to the term “or”” and “the term “or” refers to the term “or” and “the term “or” refers to the term “or” and “the term “or” refers to the term “or”

D. Whether the plaintiff's consent to transfer of copyright to the records of this case is necessary

【Plaintiff’s Claim】

The Plaintiff asserts to the effect that, even if Nonparty 1 (the Nonparty 1) falls under the copyright holder of the instant sound record, if he transferred the right to the instant sound record without the Plaintiff’s consent, the Defendant, who acquired the author’s property right, cannot exercise the copyright of the instant sound record against the Plaintiff.

[Judgment]

The former Copyright Act provides that music records, other than musical music, musical music, and singing, as one of the copyrighted works (Article 2); the author has the right to publish copyrighted works (Article 8 and Article 18); the copyright is entitled to transfer all or part of the copyrighted works (Article 42(1)); and there is no particular limitation on the transfer of copyrighted works.

In this case, the non-party 1 (the non-party 1) who has produced the instant sound recording has the copyright as the author of the instant sound recording itself in accordance with the former Copyright Act. The non-party 1 (the non-party 1) also has the copyright as the author of the instant sound recording under the latter Copyright Act, and the author’s property right in the sound recording may be freely transferred without the plaintiff’s consent, which is able to be viewed as having the copyright as to the sound recording separately from the sound recording, even without the plaintiff’s consent. The plaintiff’s assertion on the premise that the copyright in the sound recording cannot be transferred without the consent of the copyright holder of the musical sound recording is without merit.

4. Conclusion

Therefore, the author's property right held by Nonparty 1 (hereinafter referred to as "the person who recorded the music record of this case") is transferred to the Defendant in sequence, and the author's property right, such as the right of reproduction, the right of distribution, the right of lease, and the right of transmission, etc. of the music record of this case belongs to the Defendant. The plaintiff's claim based on the premise that the plaintiff is not Nonparty 1 (the person who recorded the music record of this case) but the copyright of the music record of this case itself on the premise that he is himself belongs to the Plaintiff (the third party who cannot oppose the transfer of the author's property right under Article 54 of the Copyright Act as well as the third party who is unable to oppose the registration of the transfer of the music record of this case without the registration of the transfer of the author's property right of this case is true, and the plaintiff's assertion is not true, and the plaintiff's assertion is not a person with legitimate interest or right. Therefore, the conclusion of this case does not affect the conclusion of this case).

【Attachment List of Phonograms】

Judges Lee Dong-sung (Presiding Judge)