Must a source statement always name the author? Decision 2007Do2202 on 'the real name or pen name must be stated'

Question

The former Copyright Act, in the version the decision applies, provided in Article 34(1) that a person who uses a work under that section must state its source, except in the cases of Articles 24, 26 to 29 and 31, and in Article 34(2) that 'the statement of the source shall be made by a method considered reasonable in light of the circumstances of the use of the work, and where the real name or pen name of the author is indicated in the work, that real name or pen name shall be stated.' The question is whether the second part of that sentence requires the author's real name or pen name in every case where the work carries one, or whether it merely illustrates one way of stating a source.

Decision 2007Do2202 raises that question in a criminal case. Defendant 1, an employee of Defendant 2, a company that ran an academy, quoted in a promotional booklet a commentary on past essay examination questions that a non-party company had written, added criticism of it, and marked the source only as 'a certain material of A Academy'. The court below acquitted both defendants of breaching the duty to state the source, and the prosecutor appealed to the Supreme Court.

Material to check

The statutes are the former Copyright Act articles the decision names, all in the version before the whole amendment of 28 December 2006 by Act No. 8101. As the decision quotes them, former Article 34 laid down the duty to state the source and the manner of doing so; former Article 12(2), on the author's right to have his name indicated, provided that a user of a work must indicate it as the author has indicated his real name or pen name, absent a special expression of the author's intention, but added a proviso that this does not apply where it is unavoidable in light of the nature of the work, the purpose or the form of its use. The decision also names former Article 100 No. 1-2 and Article 103, and points to Article 37, Article 138(2) and Article 141 of the Act as the current counterparts. It refers in passing to Article 20 of the Criminal Act.

The decision is the Supreme Court's judgment of 29 April 2010 (2007Do2202), given by a panel of four Justices with Justice Kim Ji-hyung as reporting Justice. It dismissed the prosecutor's appeal against the judgment of the Seoul Northern District Court of 15 February 2007 (2006No1392), which had acquitted Defendant 1 and Defendant 2. The decision cites no earlier judgment; the precedents it works from are the statutory provisions themselves.

Possible readings

Read with former Article 12(2), the words 'where the real name or pen name of the author is indicated in the work, that real name or pen name shall be stated' are, in the decision's words, 'only an example of a method of stating the source of a work', and do not mean 'that the real name or pen name of the author must be stated in every case without exception'. The decision grounds this in the legislative purpose of Article 34, which secures free use of works without the copyright owner's permission in specified cases while requiring the source so that the original work can be told apart from the work using it, and in the proviso to Article 12(2), which itself makes naming of the author subject to the nature, purpose and form of the use.

Whether a work's source, including the author's name, has been stated 'by a method considered reasonable', the decision holds, is to be judged comprehensively in light of the circumstances of the use: the type and nature of the work, and the purpose and form of its use. The test is therefore one of reasonable identification of the source in the particular setting, not of naming in all cases, and the assessment is left to the overall circumstances of each use.

A further reading follows from the way the decision applied the test to a promotional booklet. It weighed whether the quoted work could be confused with the user's own work, whether the person whose work was quoted could still claim an interest in being recognised as its author, and whether naming the author might harm that author's reputation or credit given the tendency of promotional material to exaggerated or biased criticism. On our reading these are the factors the decision found relevant there; it did not turn them into a fixed list, and it did not say which of them would decide a use in another setting.

What the decisions held

Decision 2007Do2202 held that the clause in former Article 34(2) requiring the author's real name or pen name to be stated is merely exemplary, and that whether the source has been stated in a reasonable way, the author's name included, depends on a comprehensive view of the circumstances of the use. On that basis it dismissed the prosecutor's appeal and upheld the acquittals.

The facts, as the court below found them on the evidence, were these. Defendant 1 was an employee of Defendant 2, a company operating an academy whose name the published decision anonymises. In a promotional booklet with a title asking whether three-dimensional thinking is understood, published and distributed to parents of applicants attending the academy's admissions strategy briefing, he introduced the essay examination questions set by a university in the 2000 academic year and then, before setting out the academy's own commentary, quoted a commentary published in '□□□□ Ⅰ', an essay-education material written by the non-party company, a well-known essay academy, added criticism of it, and stated the source only as 'a certain material of A Academy'.

The decision held that this method of stating the source had reasonableness of its own. Defendant 1 had clearly separated the quoted commentary from his own text and marked it as another's work, so that confusion with his own work was excluded; those who saw the booklet would take it for promotional material for the academy rather than for an essay-education textbook, so the way the source was given posed little risk to the non-party company's interest in asserting that it had written the commentary; and because promotional booklets tend to carry exaggerated or biased criticism, concretely specifying the real or pen name of the author of the quoted work could not be said to carry no risk to that author's reputation or credit. The decision also held that the court below's further and alternative view, that the act would in any event have been a justifiable act under Article 20 of the Criminal Act, was merely supplementary and hypothetical and could not have affected the judgment.

Points left open

The decision leaves the boundary of the test unsettled outside the setting it describes. It concerned a promotional booklet that quoted a rival academy's material for comparison and criticism, and the source given named that academy but not the author. It does not decide what a source statement must contain where the use is scholarly, journalistic or educational, where the criticism is neutral rather than promotional, or where naming the author would carry no risk to reputation or credit.

It is also left open how the reasonableness test applies to the current text of Article 37 of the Copyright Act, the counterpart of former Article 34 that the decision itself names. The decision construes the former wording, and it does not say whether the naming clause has the same exemplary character in the current Act, whether a pen name would satisfy the duty where a real name is withheld, or how much weight a criminal court must give the reputational consideration when the charge is a breach of the duty to state a source.

When to reconsider

This brief is revisited if the Supreme Court rules on when a source statement must name the author under Article 37 of the Copyright Act, if that article is amended so that naming becomes mandatory or the naming clause is removed, or if a later decision treats the reasonableness test stated in Decision 2007Do2202 as no longer governing.

Statutes referred to

• 구 저작권법 제12조, 제34조, 제100조, 제103조

Decisions referred to

• 대법원 2010. 4. 29. 선고 2007도2202 판결 · Decision ledger

Verification status

The texts read for this brief are the Supreme Court's judgment of 29 April 2010 (2007Do2202) in its published holdings, summary and full reasons, together with the articles of the Copyright Act that it cites, all read at the National Law Information Center on 24 October 2026. The articles are cited in the version before the whole amendment of 28 December 2006, and their current texts were not given in what was read.