[edit] Supreme Court Decision 2002Do4849 delivered on November 26, 2002 [Violation of the Copyright Act]

【Main Issues】

With respect to the crime of infringement of an author's literary property, whether the complainant who received literary property from another but has not registered the transfer has a legitimate right (affirmative)

【Summary of Decision】

The registration of transfer of an author's literary property pursuant to Article 52 of the old Copyright Act (amended by Act No. 6134 of January 12, 2000) is not a requirement to be a valid owner. It is merely a requirement to claim the copyright against a third party, and the "third party" against whom the right cannot be claimed without registration, is limited to a third party with legitimate interests in claiming the deficiency of registration of transfer of literary property, such as one who has obtained a legal status that is inconsistent with that of a recipient regarding a transfer of copyright. Since Person who has infringed another's property right is not such a third party, the recipient of property right can file a complaint against the infringer regardless of registration.

【Reference Provisions】 Article 52, item 1 of Article 98 (See Article 97-5 of the current Copyright Act), Article 102 of the old Copyright Act(amended by Act No. 6134 on January 12, 2000)

Article 52 of the old Copyright Act (amended by Act No. 6134 on January 12, 2000) (Registration and Effect of Changes in Rights etc.) The following matters shall not be claimed to a third party without registration:

1. Transfer by assignment of literary property(except transfer by inheritance or other successions), or restriction on the disposal of literary property

2. Restriction on establishment, transfer, alteration, extinction or disposal of the pledge of which the object is literary property.

Article 98 of the old Copyright Act (amended by Act No. 6134 on January 12, 2000) (Crime of Infringement of Rights) Any person who has committed any act falling under any of the following items shall be punished by imprisonment for not more than three years or a fine of not more than 30 million won, or shall be punished by both imprisonment and a fine:

1. A person who has infringed the literary property and other copyrights protected under this Act by means of copy, public performance, broadcasting, or exhibition.

2., 3. <omitted>

Article 102 of the old Copyright Act (amended by Act No. 6134 on January 12, 2000) (Complaint) The crimes prescribed under this Chapter shall be prosecuted only when the infringed party has made a complaint except those prescribed under item 3 of Article 98, items 1, 2, 3 of Article 99, and item 3 of Article 100.

【Defendant】 Defendant

【Appellant】 Prosecutor

【Court of First Instance】 Busan District Court Judgment 2000Godan8491 delivered on February 15, 2002

【Court of Second Instance】 Busan District Court Judgment 2002No732 delivered on August 27, 2002

【Disposition】 The appeal shall be dismissed.

【Reasoning】 The summary of indictments is that the defendant, on an unknown date in November, 1999, copied the Korean version of the French cookbook "Eurodlices" (hereinafter 'the cookbook'), to which Jung Kyu-jin had copyright, and made approximately 300 copies of commentary of the Korean version by using the copied book and sold 145 copies, infringing Jung Kyu-jin's copyright.

The court below dismissed the charge for the following reasons: The charged offense in this case is a crime provided in Article 98 Paragraph 1 of the old 'Copyright Act'(amended by Act No. 6134 of January 12, 2000, the same hereinafter) and can be prosecuted, pursuant to Article 102, only when there is a complaint by the infringed. Article 52 of the old 'Copyright Act' provided that the transfer of literary property cannot be claimed against the third party without registration. It is found that Jung Kyu-jin who concluded a contract with the foreign copyright owner allowing translation and publishing of a Korean version of the cookbook, transferred all the rights regarding the contract to Kim Do-young, and he filed a complaint against the defendant who produced and sold the Korean commentary of the cookbook. Since it cannot be confirmed that either Jung Kyu-jin or Kim Do-young registered the transfer of copyright of the Korean version of the cookbook, and the complaint in this case was made while there was no registration of such transfer, thus the complaint is not a lawful one made by an unlawful complainant. Therefore, the prosecution of this case is inappropriate as the process of the prosecution is against law.

But, the registration of transfer of an author's literary property pursuant to Article 52 of the old Copyright Act (amended by Act No. 6134 of January 12, 2000) is not a requirement to be a valid owner. It is merely a requirement to claim the copyright against a third party, and the "third party" against whom the right cannot be claimed without registration, is limited to a third party with legitimate interests in claiming the deficiency of registration of transfer of literary property, such as one who has obtained a legal status that is inconsistent with that of a recipient regarding a transfer of copyright. Since Person who has infringed upon another's property right is not such a third party, the recipient of property right can file a complaint against the infringer regardless of registration.

Therefore, the court below erred where it decided that the complaint in this case made while there was no registration of transfer of copyright regarding the cookbook was not made by a lawful complainant. However, it is clear from the charged facts that the victim of this crime is Jung Kyu-jin, so only Jung Kyu-jin has a right to complain, and Kim Do-young, who apparently received the transfer of the author's property right from Jung Kyu-jin after the crime was committed, does not have a right to complain. In addition, there is no data suggesting that Kim Do-young made the complaint as an agent on behalf of Jung Kyu-jin. Accordingly, the court below's conclusion that the complaint in this case was not made by a lawful complainant, despite its erroneous reasoning as mentioned above, is correct. Thus, the grounds for appeal cannot be accepted.

Accordingly, the appeal shall be dismissed as per Disposition.

Justices Lee Yong-woo (Presiding Justice)

Suh Sung (Justice in charge)

Park Jae-yoon

This is a legal document in the public domain according to Korean Copyright Law.