포레스트 매니아 판결들의 그늘: 베른협약ㆍ국제사법의 실종과 게임저작물에 대한 저작권의 준거법을 다룰 기회의 상실

The plaintiff (King.com Limited, a Maltese company)(“Plaintiff”) who developed the ‘Farm Heroes Saga’ game (“Plaintiff’s Game”) around April 2013 and released it worldwide through the Facebook platform, either produced the Plaintiff’s Game in collaboration with or acquired its copyright from Digital Jester Limited and others. Zentertain, a Hong Kong company, signed a mobile game licensing agreement around January 2014, granting the defendant (Avocado Entertainment, a Korean company)(“Defendant”) a license to exclusively distribute the Forest Mania game it developed in the Korean market. The Defendant launched the Korean version of the ‘Forest Mania’ game (“Defendant’s Game”) on the KakaoTalk platform and has been providing it through the Google Play Store and Apple App Store. The Plaintiff claiming that the Defendant’s act of developing a game substantially similar to the Plaintiff’s Game and providing it to users is an infringement of copyright, sought a ban on the act and compensation for damages. The Plaintiff also requested a ban on the act and compensation for damages on the grounds that it was an act of unfair competition under the Unfair Competition Prevention and Trade Secret Protection Act (Unfair Competition Prevention Act). The court of first instance denied copyright infringement, but acknowledged unfair competition and ordered compensation for damages. The appellate court denied both copyright infringement and unfair competition. The Supreme Court in its decision of 2017da212095, held on June 27, 2019, affirmed both, overturned the judgment of the appellate court, and remanded the case. The main issues in this case were the originality of the Plaintiff’s Game and the substantial similarity between the Plaintiff’s Game and the Defendant’s Game as a premise for copyright infringement. The Supreme Court affirmed both. The former is characterized as a matter of creation of copyright, and the latter is a matter of copyright infringement. Meanwhile, whether the Plaintiff is the copyright holder of the Plaintiff’s Game is a matter of initial ownership of copyright. In this article, I discuss, first, the governing laws of initial ownership (“initial ownership”), creation, and transfer of copyright to the Plaintiff’s Game, and second, the governing laws of copyright infringement. The “Berne Convention for the Protection of Literary and Artistic Works” (“Berne Convention”) sets out the conflict rules for the creation and transfer of copyright (in terms of interpretation) and specifies the conflict rules for copyright infringement (Article 5(2)), specifically sets forth the governing law of first ownership of cinematographic work (Article 14bis). Therefore, Korean courts should first apply the Berne Convention and, if there are no conflict rules in the Berne Convention, the Private International Law Act of Korea. Since game works are works of complex nature that combine literary works, musical works, artistic works, cinematographic works, computer program works, etc., it is necessary to review how Article 14bis regarding cinematographic works applies to game works. However, because Korean courts applied the Korean Copyright Act without considering the conflict rules, resulting in the disappearance of the Berne Convention and the Private International Law Act of Korea. Therefore, although the rulings in this case may have great significance at the level of substantive law, they are very regrettable rulings at the level of choice of law. In particular, the Supreme Court should have clearly addressed the above legal issues regarding game works. On the international level, it was necessary to clarify the meaning of Article 5 of the Berne Convention and clearly express its views on the governing law of the creation of copyright of game works and the meaning of Article 14bis of the Berne Convention in that context. On the domestic level, there was a need for the Supreme Court to unify the interpretation because the lower court rulings were divided regarding the governing law of creation of copyright. In terms of substance, the Supreme Court should have determined the country of origin of mobile game works and decided which of Articles 5(3) (lex originis) and 5(2) (lex protectionis) of the Berne Convention is applicable to creation of copyrights on game works. If they believed the Berne Convention to not apply to this case, the lower courts should have considered the attribution of game works, being works for hire, to be subject to the governing law of employment contracts, and applied that governing law (which would not be Korean law). Korea, known as the ‘Land of E-sports’ has even enacted the Game Industry Promotion Act to promote the game industry. This case provided Korean courts with a good opportunity to lead the discussion on the choice of law issues related to mobile game works, but it is very regrettable that Korean courts lost this opportunity due to their indifference to and ignorance of conflict rules on intellectual property.