Commentary on Article 198. Violation of Copyright and (or) Related Rights of the Criminal Code of the Republic of Kazakhstan

1. Unlawful use of objects of copyright and (or) related rights, as well as the acquisition, storage, transportation or manufacture, for the purpose of sale, of counterfeit copies of objects of copyright and (or) related rights, or the appropriation of authorship or coercion into co-authorship –

shall be punishable by a fine in an amount of up to eighty monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to eighty hours.

2. The same acts, if committed on a significant scale or causing significant damage, or substantial harm to the rights or legitimate interests of the author or another rights holder, or if committed repeatedly, –

shall be punishable by a fine in an amount of up to one hundred and sixty monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days.

3. The acts provided for in Part Two of this Article, if committed:

1) by a group of persons acting upon prior conspiracy;

2) on a large scale or causing large-scale damage;

3) by a person using their official position, –

shall be punishable by a fine in an amount of up to five thousand monthly calculation indices, or corrective labor in the same amount, or community service for a period of up to one thousand two hundred hours, or restriction of liberty for a period of up to five years, or imprisonment for the same period, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without such deprivation.

4. The acts provided for in Parts Two or Three of this Article, if committed by a criminal group, –

shall be punishable by restriction of liberty for a period of three to six years or imprisonment for the same period.

The public danger of the criminal offence (Parts 1 and 2 constitute criminal misdemeanours, while Parts 3 and 4 constitute crimes) is expressed in the fact that its commission results in the violation of exclusive copyright or related rights, causing material damage to the author of the work or another rights holder.

Criminal, administrative and civil liability has been established for the violation of copyright and related rights. Taking into account the increasing number of violations of copyright and related rights, the law establishes a broad range of both methods of protecting these rights and bodies authorized to ensure their protection.

The object of the analysed act is property. The additional object is public relations concerning the exercise by a person and a citizen of copyright and related rights guaranteed by the Constitution of the Republic of Kazakhstan and the Law of the Republic of Kazakhstan dated June 10, 1996, “On Copyright and Related Rights”, as well as the honour, dignity and business reputation of the victim.

Obviously, the criminal offence provided for in Article 198 of the Criminal Code of the Republic of Kazakhstan does not infringe upon all public relations regulated by intellectual property law, but only those public relations regulated by the institution of copyright and related rights. The latter does not include the institution of patent law; the institution of rights to means of individualization of participants in civil circulation and the products, goods and services they produce (trademarks, service marks, etc.); or the institution of rights to non-traditional objects of intellectual property (discoveries, topologies of integrated circuits, plant varieties and other breeding achievements, etc.). These belong to intellectual property.

In accordance with Article 2 of the aforementioned Law of the Republic of Kazakhstan, copyright means the personal non-property and property rights of the author. Related rights mean the property rights of performers, producers of phonograms and broadcasting organizations, as well as the personal non-property rights of performers.

According to the Legal Dictionary, copyright means:

1. (in the objective sense) a branch of civil law regulating personal non-property and property relations associated with the creation and use (publication, performance, etc.) of works of science, literature and art expressed in oral, written or another objective form that allows their reproduction. Copyright includes the relevant provisions of national civil legislation, as well as the provisions of international conventions on copyright protection;

2. (in the subjective sense) a set of personal non-property and property rights in relation to works of literature, science and art. Personal copyright rights (the rights of the author) include the right of authorship, the right to the author's name and the right to the integrity of the work; property rights include the exclusive right to reproduce, publish and sell the content and form of the work, and others. These rights extend to both published and unpublished works and belong to the category of intellectual property.

In accordance with paragraph 1 of Article 6 of the Law of the Republic of Kazakhstan “On Copyright and Related Rights”, objects of copyright are works of science, literature and art that are the result of creative activity, regardless of their purpose, content and merit, as well as the method and form of their expression.

According to paragraph 1 of Article 7 of this Law, they include: 1) literary works; 2) dramatic and musical-dramatic works; 3) screenplay works; 4) choreographic and pantomime works; 5) musical works with or without lyrics; 6) audiovisual works; 7) works of painting, sculpture, graphics and other works of fine art; 8) works of applied art; 9) works of architecture, urban planning and landscape gardening art; 10) photographic works and works obtained by methods analogous to photography; 11) maps, plans, sketches, illustrations and three-dimensional works relating to geography, topography and other sciences; 12) computer programs; 13) other works.

Protection of computer programs extends to all types of computer programs (including operating systems), which may be expressed in any language and in any form, including source code and object code (paragraph 2 of Article 7 of the Law).

According to paragraph 3 of Article 7 of the Law, derivative works (translations, adaptations, annotations, abstracts, summaries, reviews, dramatizations, musical arrangements and other adaptations of works of science, literature and art), as well as collections (encyclopedias, anthologies, databases) and other composite works that, through the selection and (or) arrangement of materials, constitute the result of creative labour, are also considered objects of copyright.

In accordance with paragraph 2 of Article 6 of the Law, copyright applies both to disclosed (published, released, issued, publicly performed, publicly displayed) and undisclosed works existing in any objective form: 1) written form (manuscript, typescript, musical notation and the like); 2) oral form (public speech, public performance and the like); 3) sound or video recording (mechanical, digital, magnetic, optical and the like); 4) visual form (drawing, sketch, painting, plan, diagram, film, television, video or photographic frame and the like); 5) three-dimensional form (sculpture, model, layout, structure and the like); 6) other forms.

Related rights apply to performances, interpretations, phonograms and broadcasts of broadcasting and cable broadcasting organizations, regardless of their purpose, content and merit, as well as the method and form of their expression (Article 34 of the Law).

A performance means the presentation of a work, phonogram, performance or production through acting, singing or dancing in a live performance or by means of any technical equipment (television and radio broadcasting, cable television and other means), as well as the display of frames of an audiovisual work in their sequence, with or without sound accompaniment.

A phonogram means a sound recording of performances or other sounds, as well as the representation of sounds in any form, except for a recording incorporated into an audiovisual work.

A broadcast of a broadcasting or cable broadcasting organization means a broadcast created by the broadcasting or cable broadcasting organization itself, as well as one created by another organization on its order and at its expense.

Thus, the subject matter of the criminal offence under consideration consists of objects of copyright and related rights provided for by the Law of the Republic of Kazakhstan “On Copyright and Related Rights”.

The objective side is expressed through the commission of the following acts:

unlawful use of objects of copyright and (or) related rights, as well as the acquisition, storage, transportation or manufacture, for the purpose of sale, of counterfeit copies of objects of copyright and (or) related rights;

appropriation of authorship or coercion into co-authorship.

A counterfeit copy of an object of copyright and (or) related rights is recognized as a copy of a work, a recorded performance, a phonogram or a broadcast of a broadcasting or cable broadcasting organization, the manufacture, distribution or other use of which results in a violation of copyright and (or) related rights by virtue of the provisions of the aforementioned Law or the norms of international treaties ratified by the Republic of Kazakhstan.

Objects of copyright and (or) related rights from which information on rights management has been removed or altered without the permission of the rights holder, or which have been manufactured using illegally operated devices that make it possible to circumvent technical means of protecting copyright and (or) related rights, are also considered counterfeit.

Unlawful use of objects of copyright or related rights means the reproduction, distribution, importation, display, translation or public communication of another person's work, performance or production, phonograms or broadcasts contrary to the law and without the author's consent, including without paying the author the full or partial remuneration due; the unlawful publication of a work, performance or production, phonograms or broadcasts with amendments, additions or abridgements made without the author's consent and contrary to the law; republication of a work without the consent of the author or their successors, etc.

Unlawful acquisition of counterfeit copies of works or phonograms shall be understood as purchasing them, receiving them in exchange for other goods or property, accepting them in payment of a debt, borrowing or receiving them as a gift, or appropriating found property.

Unlawful storage shall be understood as any intentional actions associated with the actual possession by the offender of counterfeit copies of works and (or) phonograms, regardless of the location (on the person, provided that this is not associated with their transportation, in a hiding place, premises, vehicle or other locations) and the period of storage. Liability for storage arises regardless of its duration.

Unlawful transportation means actions involving the transfer, dispatch or transportation of counterfeit copies of works and (or) phonograms from one place to another, including within the boundaries of the same locality.

Unlawful manufacture means any intentional actions associated with the creation, copying or reproduction as a result of which counterfeit copies of works and (or) phonograms are obtained.

Unlawful use of objects of copyright or related rights, as well as the acquisition, storage, transportation or manufacture of counterfeit copies, must be carried out for the purpose of sale. Sale shall be understood to mean any method of unlawful disposal (whether for consideration or free of charge) or transfer of counterfeit copies of works and (or) phonograms from the possession of one person into the possession of another (sale, gift, transfer in payment of a debt, exchange, lending, etc.), as well as other methods of distribution.

Appropriation of authorship is a situation in which a person declares themselves to be the author of another person's work by publishing it, in whole or in part, under their own name (pseudonym). The publication of a work created jointly with other authors without indicating the names of the co-authors, as well as the use of other authors' works in one's own works without reference to the authors, is also recognized as appropriation of authorship.

The synonym for appropriation of authorship is the concept of “plagiarism” (from the Latin “plagium” — theft, meaning the intentional appropriation of authorship). Some authors consider the concept of “appropriation of authorship” to be broader than the concept of “plagiarism”.

They understand plagiarism to mean only the publication of another person's work in its entirety or in part under one's own name, whereas appropriation of authorship, in addition to this, includes other unlawful acts, such as publishing under one's own name a work created jointly with other persons without indicating their names, using the works of other authors in one's own works without referring to them, etc.

Coercion into co-authorship shall be understood as exerting influence on an author by various means (through threats, blackmail or the use of violence) with the aim of obtaining the author's consent to indicate the guilty person (either the person exerting the coercion or another person), who did not participate in the creation of the work, as a co-author.

The disposition of Article 198 of the Criminal Code is of a blanket nature; therefore, in order to determine the unlawfulness of the above-mentioned actions, it is necessary to refer to the regulatory legal acts of other branches of Kazakhstani legislation and, first and foremost, to the Law of the Republic of Kazakhstan “On Copyright and Related Rights”.

At the same time, copyright and related rights are regulated by a number of special subordinate legal acts concerning the protection and use of phonograms, as well as by certain international agreements, in particular, the Geneva Convention of October 29, 1971, for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (the Republic of Kazakhstan ratified the Convention by the Law of the Republic of Kazakhstan dated June 7, 2000), the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, and the Berne Convention for the Protection of Literary and Artistic Works of July 24, 1971.

By its legal structure, the corpus delicti provided for in Part 1 of Article 198 of the Criminal Code is formal, meaning that the very fact of committing a criminal offence expressed in the unlawful use of objects of copyright and (or) related rights, as well as the acquisition, storage, transportation or manufacture, for the purpose of sale, of counterfeit copies of objects of copyright and (or) related rights, as well as the appropriation of authorship or coercion into co-authorship, is recognized as criminally punishable.

From the subjective side, these acts are characterized by guilt in the form of direct intent, meaning that the offender is aware that they are violating copyright and related rights, foresees the possibility of causing damage (in a certain amount) and wishes to violate those rights. Motives and purposes are not mandatory elements of the basic corpus delicti of the criminal offence provided for in Part 1 of Article 198 of the Criminal Code and do not affect its qualification. Such motives may include greed, envy, vanity, hatred, the desire to generate income, join a creative union, obtain an appointment to a position, receive an award, obtain a distinction, defend a dissertation, advance one's career, achieve fame or recognition, etc.

The subject of the offence is a sane individual who has reached the age of sixteen.

The qualifying feature under Part 2 of Article 198 of the Criminal Code is the commission of this act on a significant scale or the causing of significant damage, or substantial harm to the rights or legitimate interests of the author or another rights holder, or the repeated commission of the act. Thus, unlike the basic corpus delicti, this corpus delicti is material in nature, since recognition of the act as criminally punishable and completed requires that it be committed on a significant scale or cause significant damage, or substantial harm to the rights or legitimate interests of the author or another rights holder.

According to subparagraph 2) of Article 3 of the Criminal Code, significant damage and a significant amount in Articles 198 and 199 of the Criminal Code mean the amount of damage or the value of the rights to use intellectual property objects, or the value of copies of objects of copyright and (or) related rights, or goods containing inventions, utility models, industrial designs, plant varieties and other breeding achievements, or topologies of integrated circuits, in an amount exceeding two hundred times the monthly calculation index.

In addition to significant damage, the criminal consequences also include causing substantial harm to the rights or legitimate interests of the victim.

Subparagraph 14) of Article 3 of the Criminal Code provides that substantial harm means the following consequences in cases where they are not specified as an element of the corpus delicti of a criminal offence under the Criminal Code: violation of the constitutional rights and freedoms of a person and citizen, the rights and legitimate interests of organizations, and the interests of society and the state protected by law; causing significant damage; the emergence of a difficult life situation for the victim; disruption of the normal functioning of organizations or state bodies; disruption of important military activities or a temporary decrease in the level of combat readiness and combat capability of military units and subdivisions; failure to detect or repel in a timely manner an attack by armed groups or individual armed persons, ground, air or naval military equipment; allowing the unhindered illegal crossing of the State Border of the Republic of Kazakhstan by persons and vehicles, the movement of smuggled goods, or tolerating actions that cause damage to border facilities and technical border protection equipment; and other consequences indicating the substantial nature of the harm caused.

In this regard, substantial harm may be recognized as an evaluative category. The Criminal Code defines harmful consequences in a generalized form. Such a legislative construction of offences included in Chapter 6 of the Special Part of the Criminal Code is entirely justified, since the consequences may be diverse and it is impossible to list all of them in the law.

It should be noted that repeated criminal offences in the field of copyright and related rights occur only in the absence of a single intent on the part of the person to commit them. If the person's actions were covered by a single intent, then repetition cannot be established. K. rented out a counterfeit videotape for four months and thereby caused significant damage to eight rights holders. In the case of L., the court established that the defendant distributed 143 counterfeit videotapes through sale and thereby caused large-scale damage to seven rights holders. In the case of Z., the court established that the defendant sold and rented out 169 counterfeit videotapes and thereby caused significant damage to two rights holders. The court lawfully found K., L. and Z. guilty of committing the criminal offence provided for in Parts 1 and 2 of Article 198 of the Criminal Code. Although the actions of each of them caused significant (large-scale) damage to several rights holders, those actions were covered by a single intent and, consequently, did not constitute repeated criminal offences.

The criminal law recognizes the commission of the above-mentioned acts under the following particularly qualifying circumstances:

by a group of persons acting upon prior conspiracy;

on a large scale or causing large-scale damage;

by a person using their official position (Part 3 of Article 198 of the Criminal Code).

A violation of copyright and related rights shall be recognized as having been committed by a group of persons acting upon prior conspiracy if persons participated in it after having agreed in advance to commit it jointly.

According to subparagraph 38) of Article 3 of the Criminal Code, large-scale damage or a large amount means the amount of damage or the value of the rights to use intellectual property objects, or the value of copies of objects of copyright and (or) related rights, or goods containing inventions, utility models, industrial designs, plant varieties and other breeding achievements, or topologies of integrated circuits, in an amount exceeding one thousand times the monthly calculation index.

A violation of copyright and related rights by a person using their official position means actions committed by an official within the scope of their competence but whose content is knowingly contrary to the goals and objectives for the achievement of which the relevant body operates.

The legislator has reasonably provided for this particularly qualifying circumstance, since appropriation of authorship (especially such a form as coercion into co-authorship) is often committed by a person using their official position. In this regard, official position substantially facilitates the appropriation of authorship, since the person has the ability to exert psychological pressure on the author (if the author is subordinate to that person). This factor significantly increases the public danger of the criminal offence under consideration, especially since, in certain cases, the use of official position gives the person additional confidence by reducing the risk of being held criminally liable for the appropriation of authorship.

Part 4 of Article 198 of the Criminal Code strengthens liability for the commission by a criminal group of acts provided for in Parts 2 or 3 of this Article. A detailed analysis of the feature under consideration is provided in the commentary to Article 188 of the Criminal Code, “Theft”.

The criminal offence under consideration should be distinguished from the act provided for in Article 222 of the Criminal Code, “Unlawful Use of a Trademark”. Firstly, the object in the field of copyright and related rights is property, whereas the object of unlawful use of a trademark is public relations arising in connection with the registration, legal protection and use of trademarks, service marks and appellations of origin of goods. Secondly, the above-mentioned criminal offences are also distinguished by their subject matter. The subject matter in the field of copyright and related rights consists of such objects of copyright and related rights as works of science, literature and art, performances, productions, phonograms and broadcasts of broadcasting and cable broadcasting organizations. The subject matter of the act provided for in Article 222 of the Criminal Code is a trademark — a designation registered in accordance with the law or protected without registration by virtue of international treaties to which the Republic of Kazakhstan is a party, serving to distinguish the goods (services) of certain legal entities or individuals from similar goods (services) of other legal entities or individuals.

In terms of the subject matter, Article 198 of the Criminal Code differs from the unlawful disclosure or use of information constituting a commercial or banking secret, tax secrecy obtained during horizontal monitoring, the secrecy of microcredit provision, the secrecy of collection activities, as well as information related to the legalization of property, without the consent of its owner, by a person to whom such information was entrusted by virtue of their service or employment, committed out of mercenary or other personal interest and causing large-scale damage (Part 2 of Article 223 of the Criminal Code). Unlike the acts provided for in Article 198 of the Criminal Code, one of the subjects of this crime is commercial, banking or tax secrecy, as well as the secrecy of collection activities.

In accordance with Article 28 of the Entrepreneurial Code dated October 29, 2015, the protection of commercial secrets consists in prohibiting the unlawful acquisition, disclosure or use of information constituting a commercial secret.

A business entity determines the range of persons entitled to free access to information constituting a commercial secret and takes measures to protect its confidentiality, as well as establishes the procedure for classifying information into access categories and the conditions for storing and using information constituting a commercial secret.

Persons who have unlawfully obtained, disclosed and (or) used information constituting a commercial secret are obliged to compensate for the damage caused in accordance with the civil legislation of the Republic of Kazakhstan.

A business entity or a person authorized by it has the right to require its employees to provide written undertakings not to disclose information constituting a commercial secret and to warn persons conducting inspections of the business entity about liability in accordance with the laws of the Republic of Kazakhstan.

The list of information subject to mandatory publication or mandatory disclosure to shareholders of a joint-stock company, participants of a business partnership, members of a production cooperative or another specified group of persons shall be established by the laws of the Republic of Kazakhstan and the constituent documents of the business entity.

Information constituting a commercial secret may not be disclosed without the consent of the business entity, except for information in respect of which there is a court decision that has entered into legal force, or in other cases established by the Code.

State bodies and their officials, without the consent of the business entity, are not entitled to disclose and (or) use information constituting a commercial secret that has become known to them in the course of performing their official duties, except in cases provided for by the laws of the Republic of Kazakhstan.

A business entity has the right not to provide state bodies and officials, when performing registration, control and supervisory functions and carrying out other actions, with access to information constituting a commercial secret, except for information necessary for the performance of the functions assigned to them.

A business entity that owns a critically important information and communication infrastructure facility by right of ownership or on another lawful basis shall transfer a backup copy of the electronic information resource to the unified platform for backup storage of electronic information resources in accordance with the procedure determined by the legislation of the Republic of Kazakhstan, taking into account the requirements of the legislation of the Republic of Kazakhstan on national security. State bodies and their officials shall bear liability established by the laws of the Republic of Kazakhstan for the unlawful disclosure and (or) use of information constituting a commercial secret, and damage caused to a business entity as a result of such disclosure and (or) use shall be subject to compensation in accordance with the civil legislation of the Republic of Kazakhstan.

In accordance with paragraph 1 of Article 50 of the Law of the Republic of Kazakhstan dated August 31, 1995, “On Banks and Banking Activities in the Republic of Kazakhstan”: “Bank secrecy includes information about clients and correspondents of banks, their transactions and relations with banks associated with the receipt of banking services, including, without limitation: information about the existence, owners and numbers of bank accounts and correspondent accounts of banks, balances and movements of funds in those accounts and in the accounts of the bank itself, restrictions on the aforementioned accounts (decisions and (or) orders of state bodies suspending debit transactions, arrests, pledges), transactions of clients and correspondents and of the bank itself (except for the general conditions for conducting banking operations), as well as the existence, owners, nature and value of clients' property held for safekeeping in safe deposit boxes, cabinets and premises of the bank, information about clients obtaining loans (except for cases specified in this Article), and the conduct of payment and (or) money transfer transactions, including those carried out without opening a bank account.

Information about loans issued by a bank undergoing liquidation shall not constitute bank secrecy.”

Tax secrecy consists of any information about a taxpayer (tax agent) received by a tax authority, except for information specified in paragraph 1 of Article 30 of the Tax Code dated December 25, 2017.

The secrecy of collection activities includes any information about a debtor, creditor, debt, third parties connected by obligations with the creditor under a bank loan agreement or a microcredit agreement, the terms of concluded debt collection agreements, and other information obtained and (or) prepared by a collection agency in the course of carrying out collection activities (Article 11 of the Law dated May 6, 2017, “On Collection Activities”).

Related crimes differ in terms of their subjective elements, since the disposition of Part 2 of Article 223 of the Criminal Code contains an indication of the motive for committing the crime — mercenary or other personal interest.

Criminal offences in the field of copyright and related rights must be distinguished from theft (Article 188 of the Criminal Code). The subject matter of theft is property belonging to someone else. The subject matter of criminal offences in the field of copyright and related rights, on the other hand, consists of works of science, literature and art, performances, productions, phonograms and broadcasts of broadcasting and cable broadcasting organizations, in respect of which the rights holder possesses the personal non-property and exclusive property rights listed in the Law of the Republic of Kazakhstan “On Copyright and Related Rights”. The fact that the rights holder possesses non-property and property rights to the above-mentioned objects of copyright or related rights does not in itself grant the rights holder ownership rights to them. For example, copyright in a videotape may belong to one person (the rights holder), while the same videotape may be owned by another person. The theft of the aforementioned videotape constitutes a criminal offence against property and does not constitute a violation of copyright and related rights. If, however, the owner of the videotape reproduces and sells it without the consent of the rights holder, there will be no theft, but rather a criminal offence in the field of copyright and related rights.

Finally, criminal offences in the field of copyright and related rights should be distinguished from the crime provided for in Article 210 of the Criminal Code, “Creation, Use or Distribution of Malicious Computer Programs and Software Products”. In accordance with Part 1 of Article 210 of the Criminal Code, liability arises for creating a computer program or software product, or making changes to an existing program or software product, with the purpose of unlawfully destroying, blocking, modifying, copying or using information stored on an electronic medium, contained in an information system or transmitted through telecommunication networks, or disrupting the operation of a computer, subscriber device, computer program, information system or telecommunication networks, as well as for the intentional use and (or) distribution of such a program or software product.

Making changes to existing programs, as a criminal act provided for in the disposition of Part 1 of Article 210 of the Criminal Code, simultaneously constitutes unlawful use of an object of copyright. However, while the corpus delicti of the crime provided for in Part 1 of Article 210 of the Criminal Code is formal in nature and the very fact of making changes to programs constitutes the elements of this crime, the corpus delicti of the criminal offence provided for in Part 2 of Article 198 of the Criminal Code is material in nature. Accordingly, bringing the offender to criminal liability under Part 2 of Article 198 of the Criminal Code is possible only if the changes to computer programs have been made on a significant scale or have caused significant damage, or substantial harm to the rights or legitimate interests of the author or another rights holder.

It is also necessary to correctly qualify criminal offences in the field of copyright and related rights in conjunction with other criminal acts.

Thus, if the perpetrator appropriates authorship of objects of copyright or unlawfully uses objects of copyright or related rights that contain objects of patent rights (for example, appropriating authorship of a scientific work in which the author discloses the essence and formula of their invention), the actions of that person must be qualified cumulatively under Articles 198 and 199 of the Criminal Code.

If the perpetrator violates copyright and related rights while unlawfully using another person's trademark (for example, selling counterfeit videotapes of domestic production under the trademark “80КУ”), their actions, in addition to Article 198 of the Criminal Code, must be qualified under Article 222 of the Criminal Code, “Unlawful Use of a Trademark”.

If the perpetrator unlawfully uses objects of copyright or related rights that they have stolen, their actions must be qualified under Article 198 of the Criminal Code, as well as under the article of the Criminal Code providing for liability for the relevant form of theft (Articles 188–192). If the perpetrator acquires, as previously promised, objects of copyright or related rights that they know have been obtained through theft and subsequently unlawfully uses them, such actions must be qualified under Article 198 of the Criminal Code and the relevant article of the Criminal Code providing for liability for the corresponding form of theft (Articles 188–192), with reference to Part 5 of Article 28 of the Criminal Code — aiding and abetting theft. If, however, the perpetrator acquires objects of copyright or related rights that they know have been obtained through theft without having promised to do so in advance, and subsequently unlawfully uses them, such actions must be qualified under Articles 198 and 196 of the Criminal Code, “Acquisition or Sale of Property Known to Have Been Obtained by Criminal Means”.

The movement of objects of copyright or related rights across the customs border of the Eurasian Economic Union without the consent of the rights holder, on a large scale, carried out outside or by concealing them from customs control, or through the fraudulent use of documents or means of customs identification, or involving non-declaration or false declaration, must be qualified cumulatively under Articles 198 and 234 of the Criminal Code, “Economic Smuggling”.

The acts provided for in Parts 1 and 2 of Article 198 of the Criminal Code constitute criminal misdemeanours.

The act provided for in Part 3 of Article 198 of the Criminal Code constitutes a crime of medium gravity.

The act provided for in Part 4 of Article 198 of the Criminal Code constitutes a serious crime.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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