On December 24, 2019, the Korean Supreme Court rendered a decision in case 2019Do10086 relating to the conditions for criminal punishment for copyright infringement.

According to the decision, which relates to software programs, in order for a suspected copyright infringer to be punished for violating the Copyright Act the suspect must be identified, and it must be precisely specified whether the act of the identified suspect is (i) a direct reproduction (i.e. copying a program) or (ii) an exploitation in business of a copyright-infringing copy of a program by a person who has acquired it with the knowledge of such infringement (i.e. a malicious use of a program).

We will briefly discuss the case and its implications.

Case Background

The criminal defendants in this case are an advertising sales agency and subsidiary whose employees copied dozens of program works via unauthorized means, or used the same with bad faith in their work. After investigation, the prosecutor stated the criminal facts subject to judgment in the indictment such as “the defendant companies infringed the copyright of the program copyright holder as unidentified employees from the defendant companies obtained the program work via unauthorized copying and used it in their work”.

Comment

Article 136(1) of the Korean Copyright Act provides that a person who infringes on an author’s economic right or other property rights protected pursuant to the Copyright Act by means of reproduction may be subject to penalty provisions. Additionally, Article 136(2)-4 provides that a person who has acquired a copy of a copyright-infringing program with the knowledge of such infringement and exploits it in business may be subject to penalty provisions.

That is, though the use of the program itself is not included in the conventional type of program copyright infringement, the legislation has been worded to ensure effective copyright protection for programs by considering the intentional exploitation in business of copies of copyright-infringing programs.

Therefore, a person infringing on an author’s program copyright by means of reproduction may only violate above-mentioned Article 136(1) relating to copying, but would not violate Article 136(2)-4 relating to malicious use.

In the decision, the prosecutor stated in the indictment that the defendant company infringed the copyright of the program copyright holder as unidentified employees from the defendant’s company obtained the program work via unauthorized copying and used it in their work. However, the Supreme Court found that the charge merely stated that the “employees obtained the computer program by unauthorized copying and used it in their work”, and so it is not clear whether the employees are in violation of Article 136(1) or Article 136(2)-4.

Under the Korean Criminal Procedure Act, in order for a criminal defendant to be able to fairly defend their case, the charge must be stated clearly, with the time and date, place, and method of the crime specified. Criminal punishment of copyright infringement is no exception to this rule. Accordingly, as the criminal defendants in this case could not easily make a defense, the defendants could not be punished under either provision.

Analysis

According to this decision, in order for a corporation to be punished for copyright infringement, employees responsible for infringing the copyright must be individually identified, and for each identified employee it should be specified whether they are a person who copied the program, or a person who acquired and used the copy with knowledge of the infringement.

Therefore, this decision will likely affect conventional crackdown practices by copyright holders seeking corporate liability due to the existence of illegal software stored in the media managed by a particular corporation.