A law firm for the protection of copyright and related rights
The plaintiff is obliged to prove the fact of unlawful use by the defendant of the rights belonging to him, and the defendant is obliged to prove that the actions committed by him in relation to the object of copyright or related rights comply with the requirements of the Law and do not violate the rights of the author. K. filed a lawsuit against IP B. to recover compensation in connection with copyright infringement in the amount of 1,000 minimum wages fees. He motivated the claims by the fact that according to the certificate of state registration of rights to the copyright object No. 1198 dated September 27, 2012, exclusive property rights to the copyright object were registered for him, created on May 20, 2006 under the name "Scheme (plan) of the city of Balkhash". The copyright object created by him was not lawfully published and was not put into civil circulation, the defendant did not apply to him for permission to reproduce the scheme and distribute copies of it. He became aware that the defendant was implementing the scheme he had created, and therefore he purchased one copy of the scheme from the defendant, which was documented. He believes that his rights have been violated and property damage has been caused to him, since the defendant has been reproducing the scheme for a number of years, and copies of it are distributed when he carries out business activities through their sale in order to generate income. By the decision of the Balkhash city Court of the Karaganda region dated December 23, 2013, in the claim of K. refused. By a private ruling of the Balkhash City Court of the Karaganda region dated December 23, 2013, the prosecutor of the city of Balkhash was informed of K.'s violation of the exclusive rights to the general plan (scheme) of the city of Balkhash, owned by the state represented by the local executive body, in order to take appropriate measures. By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the Karaganda Regional Court dated February 21, 2014, the decision of the court of first instance was overturned. By the decision of the Appellate Judicial Board for Civil and administrative cases of the Karaganda Regional Court dated February 26, 2014, K.'s claim was partially satisfied.
Payment of compensation in connection with copyright infringement in the amount of twenty minimum wages, equivalent to the amount of 399,320 tenge, was collected from IP B. in favor of K. The rest is denied. By the ruling of the Appellate judicial board dated February 26, 2014, the private ruling of the Balkhash City Court of the Karaganda region dated December 23, 2013 was canceled. By the decision of the Cassation Judicial Board of September 12, 2014, the ruling of the court of appeal of February 21, 2014 on the cancellation of the decision of the court of first instance, the decision of the court of appeal remained unchanged. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court overturned the ruling and decision of the appellate and cassation judicial boards of the Karaganda Regional Court, leaving the decision of the court of first instance in force in view of the following. It follows from the case file that the certificate of state registration of the rights to the copyright object No. 1198 dated September 27, 2012 registered the exclusive right to the copyright object for plaintiff K. under the name "Scheme of the city of Balkhash by 2006" (plan, scheme). It follows from the plaintiff's explanations that he created this scheme using the publicly available and well–known computer program Google - Planet Earth. Declaring claims against IP B. regarding the recovery of compensation in the order of copyright protection, the plaintiff motivated his claims by the fact that the defendant has been distributing the copyright object in the form of a scheme for a number of years by selling it in order to generate income.
In accordance with paragraph 29 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan No. 11 dated December 25, 2007 "On the application by courts of certain norms of legislation on the protection of copyright and related rights", when considering cases for the protection of infringed copyright or related rights, the plaintiff, in accordance with Article 65 of the CPC, is obliged to prove the fact of the defendant's misuse of his rights, and the defendant is obliged to prove that the actions committed by him in relation to the object of copyright or related rights comply with the requirements of the Law and do not violate the rights of the author. The Court of first instance, dismissing K.'s claim, concluded that the plaintiff had not proved that the defendant had distributed the copyright object through its sale in order to generate income. These conclusions of the court of first instance are based on the case materials, as well as on the circumstances established at the court session and recognized by the plaintiff. Thus, the court found that the "Balkhash City Scheme by 2006" was created by two persons, N. and K., which was not disputed by the plaintiff's representative, A. The court reviewed the book "Balkhash", published in 2007, compiled by N. and K., the plaintiff could not explain why the "Map of the city of Balkhash by 2006" appeared in this book. Also, at the court session, no one disputed the fact that the plan-scheme of the city of Balkhash is posted at all bus stops of the city, in state institutions, on the website of the Akimat of the city of Balkhash, the State Institution "Department of Architecture and Urban Planning of the city of Balkhash" is freely available, published in all telephone directories and collections of the city. At the court hearing, IP B. He explained that the plaintiff had contacted a copy center belonging to him and asked him to print out a map of the city of Balkhash from a flash card provided by him. Since the copy center provides paid services to the public, one copy of the scheme was printed out to the plaintiff and a fee was received. A receipt for payment in the amount of 100 tenge and a photocopy of the scheme were subsequently presented by the plaintiff as evidence in support of the claims. The plaintiff also submitted an invoice issued by IP B., from which it follows that they received a city map and accepted payment in the amount of 640 tenge. However, it does not appear from this document that the defendant used the plaintiff's copyright object, since a different name is indicated – "city map", and not "scheme (plan) of the city of Balkhash".
There is no other evidence of illegal reproduction or distribution of the copyright object by the defendant. not represented. Under the circumstances described, the board concluded that the plaintiff had not proven the fact that the defendant had distributed the copyright object through its sale in order to generate income, and there was no evidence of the defendant's participation in posting the blueprint at bus stops, websites, telephone directories and collections, as well as in the book "Balkhash", in connection with which The author's rights provided for in paragraph 1 of Article 978 of the Civil Code have not been violated. Canceling the decision of the court of first instance, making a new decision on the satisfaction of the claim, the court of appeal referred to paragraph 25 of the above-mentioned normative resolution of the Supreme Court of the Republic of Kazakhstan. According to this paragraph, a printing house that prints copies of a work in accordance with a contract with the publisher performs technical functions and is not a proper defendant. If, on its own initiative, the printing house increases the circulation of the publication, it is considered the manufacturer of counterfeit copies of the work and bears the responsibility provided for by the legislative acts of the Republic of Kazakhstan. Meanwhile, the appellate instance has not motivated the conclusions based on the content of this paragraph of the regulatory resolution, it has not been established whether the terms of the contract were fulfilled by the parties, whether IP B. on his own initiative increased the circulation of the publication and in what quantity, whether counterfeit copies were produced. In these circumstances, the board indicated that the conclusions of the appellate instance were not based on the case file and the norms of the law. The Supervisory judicial board found the decision of the court of first instance to be lawful and justified, and therefore the contested judicial acts of the appellate and cassation instances, rendered on the merits of the dispute, were annulled.
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