Comment to article 184. Criminal Code Violation of copyright and related rights of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Attribution of authorship or coercion to co-authorship, if this act has caused significant damage to the author or another copyright holder or significant harm to their rights or legitimate interests, -
is punishable by a fine in the amount of one hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of one to five months, or by community service for a period of one hundred to one hundred and eighty hours, or by restriction of liberty for a term of up to two years.
2. Illegal use of objects of copyright or related rights, as well as the acquisition, storage, transfer or manufacture of counterfeit copies of works and (or) phonograms for the purpose of sale, committed on a significant scale, -
are punishable by a fine in the amount of five hundred to seven hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of five to ten months, or by community service for a period of one hundred eighty to two hundred forty hours, or by arrest for a period of three to six months.
3. The acts provided for in the second part of this Article, committed:
a) repeatedly;
b) a group of persons by prior agreement or an organized group;
c) on a large scale or causing major damage;
d) a person using his official position, -
are punishable by imprisonment for a term of two to five years with or without confiscation of property.
The public danger of the act in question is expressed in the fact that as a result of its commission, exclusive copyright or related rights are violated, causing material damage to the author of the work or another of their rightholders.
The object of the analyzed act is the social relations between a person and a citizen of copyright and related rights guaranteed by the Constitution of the Republic of Kazakhstan, as well as The Law of the Republic of Kazakhstan "On Copyright and Related Rights" dated June 10, 1996.
The subject of the crime is scientific, artistic, musical or literary works and others. The objective side of the act in question is expressed in the following actions:
1) attribution of authorship;
2) coercion to co-authorship;
3) illegal use of objects of copyright or related rights;
4) acquisition, storage, transfer or manufacture of counterfeit copies of works and (or) phonograms;
Attribution of authorship should be understood as the fact that a person proclaims himself the author of someone else's work, releasing it in whole or in part under his own name (pseudonym). Attribution of authorship is also recognized as the release of a work created jointly with other authors without specifying the names of the co-authors, the use of someone else's work in their works without reference to the author.
Coercion to co-authorship should be understood as influencing the author in various ways (through threats, blackmail, or violence) in order to obtain his consent to designate as a co-author a guilty person (both a co-author and another) who was not involved in the creation of the work.
Illegal use of objects of copyright or related rights is understood as reproduction, distribution, import, demonstration, translation, or disclosure contrary to the law of someone else's work, performance or production, phonograms, broadcasts without the consent of the author, including without paying the latter in whole or in part a fee.; in the illegal publication of a work, the performance or staging of phonograms, broadcasts with amendments, additions or abbreviations made to it without the author's consent, contrary to the law, in the republication of a work without the consent of the author, or their legal successors, etc.
The illegal acquisition of counterfeit copies of works or phonograms should be considered as purchase, receipt in exchange for other goods and things, in payment of debt, loan or gift, appropriation of the found.
Illegal storage should be understood as any intentional actions related to the actual finding of counterfeit copies of works (or) phonograms in the possession of the perpetrator, regardless of the place (with himself, in a hiding place, indoors, in a vehicle and in other places) and the time of their storage.
Illegal movement should be understood as the transfer, transfer, transportation of counterfeit copies of works and (or) phonograms from one place to another, including within the same locality.
Illegal production should be understood as any intentional actions related to the creation, copying, or replication, as a result of which counterfeit copies of works and (or) phonograms were obtained.
All these actions must be carried out for the purpose of sale, which should be understood as any means of illegal sale or transfer of counterfeit copies of works and (or) phonograms from the possession of one person to the possession of others (sale, donation, payment of debt, in exchange, loan, etc.), as well as other methods of distribution. By design, the analyzed composition is material, since in order to be recognized as a criminally punishable and completed act, significant damage or significant harm to their rights or legitimate interests is required. In a note to Articles 184-1 of the Criminal Code, the legislator determines that significant damage or a significant amount in Article 184 of the Criminal Code recognizes the amount of damage or the value of intellectual property rights or the value of copies of works and (or) phonograms or goods containing inventions, utility models, industrial designs, breeding achievements or integrated circuit topologies in It is one hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.
In addition to significant damage, the criminal consequences also include causing significant harm to the rights or legitimate interests of the victim. Significant harm is an estimated category. The signs of "significant harm" are not specified in the law. The law defines harmful effects in a generalized form. This construction of crimes included in Chapter 6 of the Special Part of the Criminal Code is absolutely correct, since "... harmful consequences can be very diverse and it is not possible to list them in the law."
On the subjective side, this act is characterized by guilt in the form of direct intent and purpose, which is a constructive feature of this act. The perpetrator is aware that he is violating copyright and related rights in order to make a profit and wants to violate them.
The subject of the crime is a sane individual who has reached the age of 16.
The criminal law recognizes the following circumstances as qualifying features::
a) repeatedly;
b) a group of persons by prior agreement or an organized group;
c) on a large scale or causing major damage;
d) by a person using his official position.
Such a violation of copyright and related rights should be considered repeated when a person has previously committed such an act, for which the criminal record has not been expunged or withdrawn and the statute of limitations for bringing such a person to criminal responsibility has not expired.
A violation of copyright and related rights is recognized as committed by a group of persons by prior agreement if it is committed by two or more persons who conspired to jointly carry it out in advance, that is, before the commission. The act in question will be recognized as committed by an organized group when a stable, cohesive group unites in advance to commit this crime.
According to paragraph 2 of the note to Articles 184-1 of the Criminal Code of the Republic of Kazakhstan, acts are recognized as having caused major damage or committed on a large scale if the amount of damage or the value of intellectual property rights or the value of copies of works and (or) phonograms or goods containing inventions, utility models, industrial designs, breeding achievements or topologies of integral The number of microchips is five hundred times higher than the monthly calculation index established by the legislation of the Republic of Kazakhstan at the time of the crime.
Violation of copyright and related rights by a person using his official position is understood as actions that are committed by an official within his competence, but in their content knowingly contradict the goals and objectives for which the relevant body operates.
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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