Recently, the South Korea''s Supreme Court ruled that it constitutes infringe upon the right of temporary reproduction when breaking the license agreement of simultaneous use. In the above-mentioned cases, Kim & Chang, as the agent of the copyright holder, has achieved the successful result both in the first and second instance of the case that the alleged infringer infringed upon the copyright.

The license agreement of simultaneous use refers to an agreement that is signed on the condition that the number of simultaneous users of the software does not exceed the maximum number of simultaneous users specified in the agreement. The copyright holder concerned in this case grants enterprises the right of simultaneous use by signing the license agreement on the use of the software with the enterprises. The alleged infringer concerned in the case invented the software that enabled the number of users of the copyright holder''s software to exceed the maximum number of simultaneous users specified in the license agreement, and the alleged infringer sold the software to the end consumers for the copyright holder''s software. In the use of the software of the alleged infringer, it will temporarily copy the software of the copyright holder. The copyright holder challenged such use. The alleged infringer filed the litigation on the grounds that their software does not infringe upon the copyright.

The Court held that it could not be recognized that the copyright holder has also authorized the temporary reproduction of the maximum number of simultaneous users beyond the agreed amount when signing the license agreement and Article 35 (2) of the Copyright Law (Temporary reproduction of works shall be permitted within the necessary extent for the smooth and efficient information processing during the use of the works on a computer) shall not be applicable to such temporary reproduction for disclaimer. In the meanwhile, the Court held that the software of the alleged infringer may reduce the number of authorizations for the copyright holder’s software. Therefore, the software of the alleged infringer will decrease the sales volume of the license agreement on the use of the software.

The Court decision in this case is contrary to the decision in the case of Opencapture in 2017 which determined that the exemption clause of Article 35 (2) of the Copyright Law can be applied to the temporary reproduction in violation of the license agreement and the claim of infringement upon copyright was not established. However, in this case, It’s specified in the Court decision that the temporary reproduction in violation of the license agreement for use may constitute copyright infringement if it has independent economic value. Particularly, most of the software used by enterprises are usually authorized by the license agreement for simultaneous use. Thus, the Court decision of this case has important reference value to practice. That is, when determining whether it complies with the use conditions and scope specified in the license agreement on use of software, the possibility that the temporary reproduction may constitute copyright infringement in a specific situation should be taken into consideration.