Supreme Court Recognizes for the First Time "Unauthorized Posting of Expert's Article on Facebook... Infringement of Moral Rights"

The Supreme Court has issued its first ruling that unauthorized reposting of another person's writing posted on social networking services (SNS) to one's own SNS without indicating the source can constitute an infringement of the author's moral rights.

According to the legal community on the 22nd, the Supreme Court's First Division (Presiding Justice No Tae-ak) recently finalized the lower court's ruling that sentenced Mr. A, who was indicted for violating copyright law, to a fine of 10 million won.

Supreme Court, Seocho-dong, Seoul.

The court explained the reason for dismissing the appeal, stating, "There is no error in the lower court's judgment that violates the rules of logic and experience, exceeds the limits of free evaluation of evidence, or misunderstands the legal principles regarding the establishment of the crime of copyright infringement due to infringement of moral rights."

Mr. A was indicted on charges of posting 47 times on Facebook from 2015 to 2018 posts and serial writings originally posted by Dr. B, a mechanical and aerospace engineering Ph.D., as if they were his own writings.

Dr. B, a mechanical and aerospace engineering Ph.D., was a researcher at a university in the United States, a former senior researcher at a major domestic corporation, and was serving as the head of a technology research institute at a certain company.

From February 2011 to January 2014, Dr. B created and posted over 50 essay-style posts on his Facebook page on various topics such as music, art, history, literature, and engineering, adding his own interpretations based on his expertise and experience as a mechanical and aerospace engineering Ph.D.

Additionally, from January 2017 to October 2018, he created and serialized a total of 24 articles in the expert column of a magazine published and operated by an academic society, including titles such as "The Meaning and Contribution of Fluid Mechanics" and "Introduction to Newton's Achievements."

Mr. A, who was friends with Dr. B on Facebook, had copied and kept Dr. B's posts, and in the case of the serial writings, he had directly requested and received them from Dr. B for safekeeping.

Then, when Dr. B closed his Facebook account in 2014, Mr. A posted 42 posts and 3 serial writings from March 2015 to August 2018, a period of three and a half years, modifying the content or structure to make them appear as his own works.

Regarding the posts uploaded by Mr. A, his Facebook friends left comments praising him such as "Thank you for always posting such knowledgeable writings," "Thank you for your great writing skills and three-dimensional explanations," and "I am captivated by your profound knowledge and the easy and interesting way you present stories." Mr. A responded with comments like "That's an excessive compliment" and "I'm embarrassed."

The prosecution applied three charges of copyright infringement against Mr. A.

▲ Unauthorized reproduction and public transmission of Dr. B's copyrighted works, infringing Dr. B's intellectual property rights (Article 136, Paragraph 1, Subparagraph 1 of the Copyright Act) ▲ Publishing the work with a false author attribution (Article 137, Paragraph 1, Subparagraph 1 of the Copyright Act) ▲ Infringement of moral rights (Article 136, Paragraph 2, Subparagraph 1 of the Copyright Act).

The most contentious issue in this case was whether the charge of infringement of moral rights, which punishes "a person who infringes the moral rights or neighboring rights of an author or performer and damages the honor of the author or performer" with imprisonment of up to three years or a fine of up to 30 million won, could be recognized.

The first trial court found Mr. A guilty of infringing intellectual property rights and false author attribution, sentencing him to a fine of 7 million won.

The court stated, "If interpreted literally, the act constituting the offense under the above provision is not only 'infringement of moral rights' but also an act that 'damages the honor of the author.' Therefore, for the crime under the provision to be established, it is necessary not only to infringe moral rights but also separately to damage the author's honor."

It continued, "There is no reasonable basis to presume that infringement of moral rights necessarily damages the author's honor unless there are special circumstances, and it is difficult to consider that the author's honor is damaged merely because the infringing writing was disclosed through highly influential SNS such as Facebook, even if the infringing writing does not contain content that damages the author's honor."

Furthermore, the court concluded, "There is no evidence to recognize that Mr. A's actions went beyond infringement of moral rights to damage the honor of the author Dr. B. Therefore, this part of the indictment lacks proof of the crime."

However, the second trial court's judgment differed.

While the first trial court held that for the violation of Article 136, Paragraph 2, Subparagraph 1 of the Copyright Act, i.e., infringement of moral rights, to be recognized, separate recognition of defamation of the victim was necessary, the second trial court held that actual damage to honor was not required.

The court first stated, "The crime of violating Article 136, Paragraph 2, Subparagraph 1 of the Copyright Act is established if there is an infringement of moral rights that could damage the author's honor, and it is not necessary that the author's honor is actually damaged."

The court then referred to the praise comments on the unauthorized reposted writings and Mr. A's replies, stating, "Dr. B has a social reputation for writing good articles based on his expertise and experience as a mechanical and aerospace engineering Ph.D., and because Mr. A posted Dr. B's writings as his own without permission and received a social reputation for writing good articles, Dr. B was exposed to the risk of social reputation damage, such as being suspected of plagiarism and having to explain himself."

Furthermore, the court concluded, "Mr. A's unauthorized posting of Dr. B's posts and serial writings on Facebook, adding or changing the content or structure as if they were his own works, constitutes infringement of Dr. B's moral rights, including the right of attribution and the right to maintain integrity. Due to this infringement, Dr. B's honor was damaged, so the crime of copyright infringement due to infringement of moral rights under Article 136, Paragraph 2, Subparagraph 1 of the Copyright Act is established."

Ultimately, the second trial court found Mr. A guilty of all three charges and sentenced him to a fine of 10 million won.

Both the first and second trial courts considered as favorable sentencing factors that Mr. A did not commit the crime for profit, that after the incident arose, Mr. A posted an apology, deleted the existing posts, withdrew from Facebook, and made efforts to restore the damage, and that he deposited 10 million won for Dr. B.

The Supreme Court also agreed with the second trial court's judgment.

The court stated, "Among the content added or changed by the defendant (Mr. A) when transferring the victim's (Dr. B's) posts to his own Facebook, there were cases reflecting the defendant's subjective social critical views or based on incorrect common sense." It also noted, "People who read the defendant's posts sent emails to the victim indicating that the defendant's posts were very similar to the victim's writings."

The court pointed out, "The writings posted by the defendant infringing the right of attribution can be perceived by an unspecified number of people as if they were the defendant's own writings, which poses a risk that the victim's status as the true author and the legitimacy of the social reputation the victim gained through Facebook posts may be questioned."

It added, "Meanwhile, due to infringement of the right to maintain integrity, the subjective views or errors expressed in the defendant's posts may be misunderstood by those who know the victim as the author as originally existing in the victim's writings, which could lower the victim author's credibility regarding expertise and insight."

Finally, the court concluded, "Ultimately, the defendant infringed the victim's moral rights, including the right of attribution and the right to maintain integrity, causing a state where the victim's social value and evaluation are at risk of being impaired, thereby damaging the honor of the victim as the author."

A Supreme Court official stated, "This ruling is the first Supreme Court decision to present specific criteria, stating that if an act infringing moral rights poses a risk of impairing the author's social value or evaluation, the crime of copyright infringement due to infringement of moral rights is established, and that whether such a risk exists should be carefully judged based on objective circumstances."

This content was produced with the assistance of AI translation services.