Copyright and related rights - On the protection of copyright (non-proprietary) rights

On the protection of copyright (non-proprietary) rights

- authorship, in the author's name, for publication, for review, for the inviolability of the work, for the protection of the author's reputation;

- on the recognition of copyrights;

- on the prohibition of illegal use of copyrights;

- disputes about the authorship (co-authorship) of an invention

           Property lawsuits about:

- collection of royalties under the author's agreement with the user;

- compensation for damages;

- recovery of income received as a result of copyright infringement;

- recovery of compensation;

- collection (payment) of royalties

On the execution of agreements on disputes in the field of intellectual property rights protection concluded by way of pre–trial settlement in cases established by law or stipulated by contract (simplified proceedings - Article 145 of the CPC)

Jurisdiction.

Disputes on the protection of infringed copyrights and related rights are subject to the jurisdiction of district (city) courts, as well as specialized interdistrict economic courts, if the parties to the dispute are legal entities and individual entrepreneurs, and are subject to consideration by way of claim proceedings. Claims for copyright and related rights protection disputes are filed according to the rules of jurisdiction established by Chapter 3 of the CPC, that is, disputes in this category are subject to the general rules of jurisdiction at the location and residence of the defendant. In cases stipulated by the copyright and license agreement, the rules of contractual jurisdiction apply.

The statute of limitations does not apply to claims for the protection of personal non-property rights (the right of authorship, the right to a copyright name, the right to publication, the right to recall, the right to inviolability of the work, the right to protect the reputation of the author), since these rights are inalienable. Property-related claims (for the recovery of royalties under the author's contract with the user, for the recovery of damages, income received as a result of copyright infringement, compensation, etc.) are subject to the general limitation period established by Article 178 of the Civil Code of three years.

The procedure for filing a claim in this category of cases is regulated by the rules of Chapter 14 of the CPC, primarily in compliance with the requirements of Articles 148-149 of the CPC.

In order to correctly determine the jurisdiction of this category of cases, when a claim is brought to court by an organization that manages property rights on a collective basis in the interests of the author, the courts should clarify the procedural status of the parties, the authority of the organization to file a claim provided for in the power of attorney or in the contract. Claims filed by organizations that manage property rights on a collective basis in the interests of authors, on the facts of violation of the property rights of authors, members of these organizations or representatives, if they have the appropriate authority to file a claim, are subject to consideration in courts of general jurisdiction.

It should be borne in mind that in accordance with subparagraph 2) of Article 541 of the Tax Code, plaintiffs – authors, performers and organizations managing their property rights on a collective basis – are exempt from paying state duties in courts for claims arising from copyright and related rights. In this category of cases, a mandatory pre-trial dispute resolution procedure is provided, unless otherwise provided by the contract.

Definition of the legal relations of the parties and the law to be followed.

The relationship between the concepts of "intellectual property law" and "copyright". Among the objects of civil rights, Article 115 of the Civil Code names objectified results of creative intellectual activity, including exclusive rights to them. Article 961 of the Civil Code lists intellectual property objects, among which objects of copyright and related rights are distinguished. One of the main issues that arise when considering this topic is the question of the relationship between the concepts of "intellectual property law" and "copyright".

According to dictionaries, "copyright" is a section of civil law that regulates relations related to the creation and use of works of science, literature and art, and "intellectual property" is a conditional collective term that includes copyrights and rights related to various types of industrial property. The Civil Code also considers these concepts (a special part).

Section 5 of the Civil Code "Intellectual Property Law" includes chapters 49 to 56. The first chapter of this section 49, "General provisions," applies to all other chapters of this section, including chapter 50, "Copyright," and chapter 51, "Related Rights." In addition to the Civil Code, copyright and related rights are regulated by a special law "On Copyright and Related Rights" with subsequent amendments (hereinafter referred to as the Law). It follows from the above that the provisions of the special Law do not apply to intellectual property rights provided for in Chapters 52-56 of the Civil Code. These relations are regulated by other special laws ("On trademarks ...", "On the protection of breeding achievements", Patent Law).

To resolve disputes in cases of this category, it seems necessary to first understand the concepts of copyright and related law, as well as the terms related to the emergence, use and protection of these rights, which are the subject of disputed legal relations.

There are two main definitions of copyright in the theory of law. One of them refers copyright to the author's work.

Thus, paragraph 1 of Article 971 of the Civil Code states that copyright applies to works of science, literature and art that are the result of creative activity, regardless of their purpose, content and dignity, as well as the method and form of their expression. It follows from the above rule of the law that a work is the result of the creative activity of the author, expressed in an objective form. Creative activity is the activity of the human brain, which is capable of creating only ideal images, and not objects of the material world, that is, the work itself is not a material, but an ideal object. However, the protection granted by copyright arises only from the moment when this ideal result is expressed in some objective (material) form. The material object in which the work is expressed is protected by the right of ownership, and the work itself is protected by copyright. Creativity is the learning of new things, that is, creativity leads to a new, previously unknown result. There is a distinction between subjective and objective novelty of a creative result. Subjective novelty is a surprise, an unknown result for the creator himself. Objective novelty is the unknown of the creative result obtained, not only for the person who received this result, but also for the rest of the people. Copyright protects only those creative results that have objective novelty. However, copyright does not protect all objectively new creative results, but only those that are unique and non-repetitive, and such non-repetitive creative results are called original. Thus, the original creative results are protected by copyright.

Paragraph 1 of Article 971 of the Civil Code refers protected works to a specific field of "science, literature and art." Works must be correctly attributed to a particular field. In particular, technical creativity should be considered a kind of scientific creativity, technical results should be attributed to scientific results, and the results of artistic and industrial design (technical aesthetics, design) should be included in the concepts of "science" and "art". Scientific literature should be included in the concept of "literature", and not in the concept of "science". The concept of "art" is interpreted broadly and includes, in addition to fine art, music, dance, choreography, theater, audiovisual art works, artistic photographs, and the like. Attributing a particular work to the field of "science," "literature," or "art" is not essential for resolving the issue of granting copyright protection to the work itself, however, such attribution of a work to one of these three areas in some cases is important for determining the scope of protection granted.  

For example, copyright in a literary work usually includes the right to translation, but copyright in a work of science and art does not know this right. The right to follow belongs only to the author of the work of fine art. The second definition of copyright refers to the person who is the author of the work, that is, it emphasizes the fact that the author has certain rights to his own work. Subparagraph 2) of Article 2 of the Law defines copyright as the personal non-property and property rights of the author.

Copyright in a work of science, literature, and art arises from the fact of its creation. Registration of the work, other special design of the work, or compliance with any formalities are not required for the creation and exercise of copyright. Copyright applies to any published or unpublished works expressed in an objective form. Therefore, copyright does not arise from the moment of publication or publication of a work, but from the moment of its creation, that is, expression in an objective form. The creation of a work as a legal fact entailing the creation of copyrights is not a transaction, and therefore works can be created by minors and incapacitated citizens. The owner of the proprietary copyright may be either the author or any other person (natural or legal) on the basis of a contract or inheritance right.

In accordance with article 28 of the Law, copyright is valid for the entire life of the author and seventy years after his death.

This rule applies to property rights, and personal non-property rights, including the right of authorship, are protected indefinitely. After the death of the author, a claim for infringement of the right of authorship may be filed by the persons specified in the will or by the author's heirs. A distinction should be made between protection of rights and protection of rights.

Protection is the establishment of a general legal regime, and protection is those measures that are taken in cases where copyright and related rights are violated or challenged. A violator of copyright and related rights is any natural or legal person who does not comply with the requirements established by the current copyright legislation. Infringement of rights can occur both within the framework of a copyright or other agreement dealing with a creative work or an object of related law, and outside the framework of concluded agreements. If the terms of the agreement on the transfer of copyright or related rights are violated, the terms of liability provided for in the agreement shall apply. In the absence of a contract, as well as when the contract does not specify specific conditions, the victim has the right to use those protective measures that are established by applicable law.

The protection of exclusive rights to the result of intellectual creative activity is carried out in the ways provided for in Article 9 of the Civil Code and Article 49 of the Law, as well as by seizing material objects with which exclusive rights have been violated and material objects created as a result of such a violation, mandatory publication of the violation, including information about who owns it. violated right, and by other means provided for by legislative acts (Article 970 of the Civil Code). The need to apply such a method of protection as the recognition of copyright or related rights arises when a person's possession of this right is questioned, the copyright or related right is disputed, denied, or there is a real threat of such actions. The restoration of the situation that existed before the violation of the right is applied in cases where copyright or related rights do not cease to exist as a result of the violation and can actually be restored by eliminating the consequences of violations.

One of the ways to protect copyright and related rights is to stop actions that violate the law or threaten to violate it. This method can be used in combination with other methods of protection, such as recovery of damages, or have an independent value. Such methods of protecting copyright and related rights as compensation for losses, including lost profits; recovery of income earned by the infringer as a result of violation of copyright and related rights; collecting compensation in a fixed amount of money is the most effective, since the victim's property interest is satisfied by monetary compensation for property losses incurred by him. In this case, these methods are applied by the court at the choice of the owner of copyright and related rights.

Payment of compensation in a fixed amount is made in multiples of the monthly calculation index (hereinafter referred to as MCI). The legislator has established minimum and maximum multiples in subparagraph 6) of paragraph 1 of Article 49 of the Law, and the specific amount of compensation must be determined by the court in each specific case. In this case, the court should take into account the estimated loss, the amount of income extracted by the violator, the degree of guilt of the violator and other factors. The Law explicitly states that it is necessary to proceed from the multiplicity of MCI when collecting compensation, the amount of which is determined by the court instead of compensation for losses and recovery of income. Along with the use of one of these methods of protecting infringed copyrights and related rights, the choice of which is carried out by the victim, he has the right to demand compensation from the guilty violator for the moral damage caused. The legal basis for this is the provisions of Articles 141 - 145 of the Civil Code, which, subject to the conditions provided for in them, in particular, violation of the personal non-property rights of authors and performers, are applied in the matter under consideration.

When considering cases in this category, in addition to the norms of national legislation, the norms of international agreements ratified by the Republic of Kazakhstan are subject to direct application, an approximate list of which is contained in paragraph 1 of the normative resolution of the Supreme Court "On the application by courts of certain norms of legislation on the protection of copyright and related rights."

Persons involved in the case.

The composition of the persons participating in the case is determined according to the general rules contained in Article 43 of the CPC, depends on the subject and grounds of the claims, objections of the parties and other persons participating in the case, and the laws to be applied. In cases of copyright and related rights protection, the plaintiffs are the author (co-author) of the work, the performer, the producer of phonograms, the broadcasting and cable broadcasting organization, the heirs of the property rights of the author and performer, publishers of anonymous works, persons to whom specific property rights are assigned on the basis of copyright or license agreement. Both individuals (authors, co-authors, performers, producers of phonograms, heirs, copyright holders) and legal entities (broadcasting and cable broadcasting organizations, organizations for managing the property rights of authors and performers on a collective basis, an authorized body in the absence of heirs of authors and performers) have the right to file a claim. Other persons may bring a claim in the interests of the author or the holder of related rights only if they have a power of attorney. Organizations that manage property rights on a collective basis, or an authorized state body, if there are no heirs of the author or performer, or if the work has passed into the public domain, are representatives of the plaintiff in accordance with their statutory activities or the law. A claim may be filed in accordance with the statutory activities if a collective management agreement has been concluded between the named organization and the author or performer of their property (exclusive) rights.

An organization managing property rights on a collective basis has the right to file a claim for the protection of the rights of a foreign author or performer violated in the Republic of Kazakhstan, if an agreement has been concluded between this organization and a foreign organization for the management of similar rights on the management of such rights of a foreign author or performer in the Republic of Kazakhstan. An organization managing property rights on a collective basis, on its own initiative, may not waive a claim filed in the interests of the author or performer – members of the organization, or conclude a settlement agreement, the condition of which is to waive compensation for damages caused by the defendant, to waive recovery of income received by the defendant, or to refuse to pay compensation in return for losses, or income, if the commission of such a procedural action is not provided for by a power of attorney issued to the organization by the author or performer of the work.

The documents confirming the right of an organization to apply to the court for protection of copyright and (or) related rights are the charter of an organization managing property rights on a collective basis, an agreement with the owner of copyright and (or) related rights to manage property rights on a collective basis, and (or) an agreement with a foreign organization managing similar rights. rights.

The proper defendant in a copyright or related rights protection case is a person who, by his actions, violated the personal non-property or property rights of the author (his heirs) or the holder of related rights, or the rights of holders of property rights assigned to them on the basis of a copyright or license agreement. Several persons may act as defendants, who, depending on the violation of the property rights of the author or performer, bear joint or shared responsibility (paragraphs 24-26 of the regulatory decree of the Supreme Court "On the application by courts of certain norms of legislation on the protection of copyright and related rights").

Facts to be established and proved. Evidence and proof.

Since, in accordance with article 9 of the Law, there is a presumption of authorship, in the absence of otherwise, the author of the work is considered to be the person indicated as the author on the original or copy of the work. When considering cases for the protection of infringed copyright or related rights, the plaintiff, in accordance with Article 72 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 he has committed 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, performer, producer of phonograms or broadcasting organization and cable broadcasting. Otherwise, the defendant must be recognized as a violator of copyright or related rights and brought to civil liability. Thus, when considering cases in this category, the court first needs to establish: whether the plaintiff is the copyright holder; the illegality of the defendant's actions in using copyright objects.

In support of the claim, the plaintiff must provide evidence confirming his authorship and the fact that the defendant used copyright objects. As evidence of authorship, the plaintiff may submit a copy of the work in which he is listed as the author, or a certificate from an authorized body, if the authorship has been registered, and other evidence indisputably confirming the plaintiff's rights in relation to the disputed intellectual property object. The plaintiff must also provide evidence of the defendant's use of the copyright object. As evidence of this fact, the following may be presented: video recording data; an act establishing the fact of the use of an object of copyright, drawn up by the author's representatives with the involvement of disinterested persons; materials of administrative and criminal cases on bringing the defendant to administrative or criminal responsibility for the misuse of copyright objects (resolutions of the authorized body; court verdict).

In support of the legality of the use of the copyright object, the defendant must submit an agreement with the author or the copyright holder on the use of the copyright object. The specified contract must be drawn up in accordance with article 32 of the Law.

Copyrights include: the personal non-property rights of the author listed in Article 977 of the Civil Code and in Article 15 of the Law. These rights (the right of authorship, the right to the author's name, the right to publication, the right to recall and the right to inviolability of the work) are inalienable. The author's heirs or the person to whom the author has entrusted the protection of his personal non-property rights, as well as the authorized state body in the absence of heirs, have the right to protect these rights of the author without limitation by any limitation period in accordance with subparagraph 1) of Article 187 of the Civil Code.; property (exclusive) rights listed in Article 978 of the Civil Code and in Article 16 of the Law. In case of violation, these rights may be protected by both the author and his heirs, by persons to whom specific or all of the author's property rights have been transferred under the copyright agreement, as well as by an authorized state body, in the ways provided for in paragraph one of article 49 of the Law. The general limitation period provided for in paragraph one of Article 178 of the Civil Code applies to the claims for the protection of the author's property rights.

The author's property (exclusive) rights are valid throughout the author's life and seventy years after his death. This period applies to each work of the author, regardless of whether the work is considered completed, unified or consisting of separate parts. The property (exclusive) rights of co-authors are valid for the entire life of each of the co-authors and for seventy years after the death of the author who outlived the other co-authors. In case of death of the author (co-authors), the term of validity of the property (exclusive) rights of the author (co-authors) is calculated starting from January 1 of the year following the year of death of the author (the last of the co-authors). The author's property (exclusive) rights in relation to a work published anonymously or under a pseudonym are valid for seventy years after the date of its lawful publication. The lawful publication of a work should be understood as bringing it to the public with the consent of the author or his heirs through publication, public performance, public display, broadcast, including by cable. If, within seventy years after the work was published anonymously or under a pseudonym, its author reveals his identity or his identity is beyond doubt, then the author's property (exclusive) rights will be valid during his lifetime and seventy years after his death.

The property (exclusive) rights of the author of a work first published (made public) within thirty years after the author's death are valid for seventy years after the publication of the work. The term of validity of such an author's right is calculated from the first of January of the year following the year of publication of the work.

If the author of the work was repressed and rehabilitated posthumously, then the term of protection of the author's property (exclusive) rights to the created works is valid for seventy years, starting from January 1 of the year following the year of rehabilitation.

The expiration of the term of protection of the author's property (exclusive) rights means that the work has passed into the public domain. A work that has passed into the public domain may be used by any person without payment of royalties, subject to the right of authorship, the right to the author's name and the right to protect the reputation of the author of the work.

The property (exclusive) rights of the author or performer of a work, transferred to several heirs by law or will without specifying the inherited objects of copyright and (or) related rights, indicates the emergence of rights to share all the works of the author and (or) objects of related rights. At the same time, none of the heirs has the right to prohibit the use of works without sufficient grounds. Remuneration for the use of the work is distributed among the heirs according to the hereditary shares.

Copyright is not related to the ownership of the material object in which the work is expressed. The transfer of rights to a tangible object does not entail the transfer of property rights to use the work.

The property (exclusive) rights of the author, ceded in whole or in part by him or his heirs under the copyright agreement, in the event of their violation by other individuals or legal entities, may be protected by the holders of such rights on their behalf by filing a lawsuit prohibiting the use of the work by the violator in the same way as provided for in the copyright agreement. If the owner of the author's property (exclusive) rights assigned to him under the copyright agreement does not protect these violated rights, then such protection may be carried out by the author or his heirs independently.

Based on the content and form of the copyright agreement provided for in article 32 of the Law, the author or his heirs, as well as the employer who owns property rights to the official work, may assign property (exclusive) rights to other persons.

Judicial practice based on the generalization of this category of cases (extract).

When concluding copyright/licensing agreements, sometimes there is a confusion between the concepts of copyright and related rights. Some users mistakenly believe that by entering into a contract for the use of related rights, they may not enter into a copyright agreement, and by entering into a copyright agreement, they may not enter into a contract for the use of related rights. Ideally, each user should enter into two contracts, one for copyright and the other for related rights.

Some users believe that there is no need to sign a copyright agreement when using background music, since they do not organize concerts and do not receive income from their holding. However, according to the Law, the author has the right to receive remuneration for each type of use of the works, including through public performance (which also includes background music), regardless of whether the user receives direct income from this or not.

Courts need to take into account changes in the legislation governing disputed relations (Civil Code, Law) since April 7, 2015, and determine the amount of compensation based on the minimum calculation index (MCI) and not on the minimum wage (minimum wage).

The most common in practice are claims for compensation for copyright infringement, for damages, including lost profits.

Example 1.

R. and R. filed a lawsuit against IP K. on the recovery of compensation in the amount of one hundred minimum wages in the amount of 1,866,000 tenge for copyright infringement. In support of the claim, the plaintiffs indicated that they were the authors of the copyright object called "Simulator ...". On May 18, 2013 , IP K. One counterfeit copy of this book was distributed in his store by selling it at a price of 1800 tenge. In turn, they, as copyright holders, did not conclude a copyright agreement and did not receive any royalties from the defendant for this type of use, thereby violating their copyrights.

By a court decision of September 10, 2013, the claim of R. and R. was denied. The court reasoned its conclusions by the fact that copies of the work "Simulator ...", the authors of which are the plaintiffs, were lawfully published and put into civil circulation, and therefore the law allows their further distribution without the consent of the author and without payment of remuneration. IP K., by implementing the specified copy of the work, did not violate the copyright of the plaintiffs. The courts of appeal and cassation instances, leaving the court's decision unchanged, reasonably indicated that the court's conclusions on the rejection of the claim corresponded to the factual circumstances of the case and paragraph 3 of Article 16 of the Law. According to the Law, if copies of a lawfully published work are put into civil circulation through their sale, then their further distribution is allowed without the consent of the author and without payment of remuneration.

Example 2.

K. filed a lawsuit against T. N. LLP to recover compensation in the order of copyright protection in the amount of 20,000 minimum wages. The requirements are motivated by the fact that according to the certificate of state registration of rights to the copyright object, exclusive property rights to the copyright object are registered for it under the name "City scheme (plan) ...". The plaintiff indicated that his rights had been violated and property damage had been caused to him, since the defendant had been reproducing the scheme without his consent for a number of years, and copies of it were distributed when he carried out business activities through sales in order to generate income.

The court's decision denied the claim, since the plaintiff did not prove the fact that the defendant distributed the copyright object through its sale in order to generate income. The court's decision was recognized as lawful by a decision of the collegium of the Supreme Court with reference to paragraph 25 of the normative resolution of the Supreme Court "On the application by courts of certain norms of legislation on the protection of copyright and related rights." According to this rule, 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. The Board assumed that K. the fact of the distribution of the copyright object by T.N. LLP through its sale for the purpose of generating income has not been proven, there is no evidence of the defendant's participation in the placement of the plan scheme 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, the defendant has not violated.

Lawsuits filed by organizations that manage property rights on a collective basis.

Example 3.

The Republican Public Association "Kazakhstan Society for the Management of Performers' Rights" (hereinafter – NGO) filed a lawsuit against IP P. for the recovery of monetary compensation in the amount of KZT 399,320 for violation of related rights. The claim is motivated by the fact that in the presence of witnesses, the inspector of the department for work with users and the copyright holder K. drew up an act stating that a public performance of the works of the Kazakh artist N. was listened to in the cafe, without concluding a contract. by using technical means, as a result of which the requirements of the legislation on copyright and related rights are violated. The Company has concluded a contract for the management of property and related rights with the contractor. Objecting to the claim, the defendant pointed out that it was necessary to conduct a videophonographic examination. The source of the music playback was not recorded, the video image was of poor quality, with obvious signs of technical interference, and the source of the video recording was not provided to the court.; It is not specified whether the video recording source is certified or whether it is possible to use it for video and audio recording. The court's decision satisfied the claim. It was decided: to collect compensation from IP P. in favor of the NGO in the amount of 399,320 tenge and refund the state duty. In satisfying the claims of the NGO, the court of first instance proceeded from the fact of violation of the related property rights of the performer, reflected in the act of listening to the public performance of the musical work of the performer N., and video recording on a DVD, and applied the provisions of Article 985 of the Civil Code, Articles 37, 38, 39, 40, 49 of the Law. The Court took into account the requirements of the Law providing for cases of performance without the consent of the producer of a phonogram published for commercial purposes and the performer recorded on such a phonogram, but with payment of remuneration, namely, public performance of the phonogram; broadcast of the phonogram; communication of the phonogram to the public by cable. According to article 22 of the Law, public performance of a work using technical means in bars, cafes, restaurants and other public places of public service is allowed without the consent of the phonogram producer, but with remuneration if such performance is performed in the presence of persons not belonging to the usual family circle. The defendant's arguments that the act was drawn up without the participation of the defendant's representative were evaluated by the court and indicated that the act confirms the fixation of execution without the consent of the contractor, which is confirmed by the testimony of witnesses and there are no grounds for appointing an expert examination. The defendant's arguments about the existence of an agreement on the transfer of rights to manage property rights concluded with the NGO "Performers of Kazakh Songs" were found to be untenable, since this organization's accreditation was revoked by order of the Intellectual Property Rights Committee of the Ministry of Justice.  

Disputes between organizations that manage the property rights of authors on a collective basis.

Example 4.

E. filed a lawsuit with the NGO to provide information about the amounts of royalties received, to notify users of the exclusion of objects of related rights, of which he is the copyright holder, by sending an official written notification to users via an online resource. The claims are motivated by the fact that he is the copyright holder of phonograms performed by performers, produced by him under the studio brand on the basis of license agreements and agreements on the assignment of property rights. He is also the rightholder of copyright and related (performing) rights to works, performances and phonograms within the framework of these agreements. On the basis of licensing agreements, he owns all the rights of the producer of phonograms, as well as the exclusive rights of performers in terms of reproducing them on media with subsequent sale, as well as by renting, followed by broadcasting on cable TV. These rights were not provided to them for the collective management of the respondent NGO. They sent a statement to the defendant with an attachment on CD-ROMs of a list of phonograms that are subject to exclusion from the list of permissions granted by this organization to all its users (reproduction, distribution, transmission via cable and on the air). In the application, he indicated that he should be paid the remuneration due in accordance with the distribution he had made over the past three years. The defendant did not comply with the requirements. As a result, all users who have concluded contracts with the defendant continue to use the phonograms and transfer the amounts to the defendant, whereas, in his opinion, they should transfer them to his address, since he is the copyright holder of the phonograms.

The court's decision denied the satisfaction of E.'s claims. The court of first instance pointed out that the plaintiff had not provided evidence confirming his right to receive information about the amounts of royalties received from users (specifically for each) for the requested musical works. The Board of Appeal recognized the above conclusions of the court as justified. According to paragraphs 1, 2 of Article 35 of the Law, the subjects of related rights are performers, producers of phonograms and broadcasting and cable broadcasting organizations. The producer of a phonogram, broadcasting and cable broadcasting organizations shall exercise the rights provided for in chapter III of the Law "Related Rights", within the limits of the rights obtained under an agreement with the performer, as well as the author of a work recorded on a phonogram or transmitted on the air or by cable. By virtue of paragraph 5 of Article 35 of the Law, unless proven otherwise, the producer of a phonogram is a natural or legal person whose name or designation is indicated on the phonogram and (or) the case containing it. According to paragraphs 1, 2 of Article 31 of the Law, the author's property rights specified in article 16 of the Law may be assigned in whole or in part, and may also be transferred for use under an author's agreement on the transfer of exclusive rights or under an author's agreement on the transfer of non-exclusive rights. Any assignment of property rights must be formalized by a written agreement signed by the author and the person to whom the property rights have been assigned. The copyright agreement on the transfer of exclusive rights authorizes the use of the work in a certain way and within the limits established by the agreement only to the person to whom these rights are transferred, and gives such person the right to prohibit such use of the work to other persons. The right to prohibit the use of a work by other persons may be exercised by the author of the work if the person to whom the exclusive rights have been transferred does not protect this right.  It follows from the case that the plaintiff E. In support of his claims, he presented to the court the contracts concluded between the director of the studio, IP Ye. and performers. At the same time, the copyright holder is He is not an individual, since contracts with performers are concluded on behalf of the studio, represented by director E., or IP E. Agreements concluded with E. as an individual, not available. From the analysis of these contracts, it follows that the terms of the contracts concluded with the performers have expired. The executors have concluded contracts with the defendant. The arguments of the complaint that the property rights of an individual entrepreneur, which arose in the course of his activities, are automatically the property rights of a citizen represented by E., were recognized by the collegium as untenable. According to article 1 of the Law "On Private Entrepreneurship", an individual entrepreneur is a citizen of the Republic of Kazakhstan or an oralman who carries out individual entrepreneurship without forming a legal entity; individual entrepreneurship is an initiative activity of individuals aimed at generating income based on the ownership of individuals themselves and carried out on behalf of individuals, at their risk and under their control. property liability.(As amended by the Law at the time of the legal relationship).

In this controversial case, the performers transferred their rights to IP E. for the latter to carry out entrepreneurial activities, but not as an individual, i.e. to protect their interests. The law does not provide for the automatic transfer of IP rights to an individual without the consent of the performers themselves. The court's decision was left unchanged by the decision of the appellate judicial board.

Disputes between copyright holders and broadcasting operators.

When considering such claims by copyright holders against television and radio broadcasting operators, the courts must proceed from the terms of the contract concluded between the television and radio channel and the operator regarding the division of responsibility for the content of television and radio channels, as well as take into account the requirements of articles 24 and paragraph 3 of Article 34 of the Law "On Television and Radio Broadcasting", defining the powers of television and radio broadcasting operators.

Example 5.

The NGO filed a lawsuit against the broadcaster for damages, arguing that the NGO is an organization that protects the rights of authors and other copyright holders to receive remuneration for public performance, as well as broadcasting or cable communication of published works. The broadcaster is an operator of satellite television and radio broadcasting, broadcasts and (or) retransmits television and radio channels, and is a user of copyright objects transmitted, among other things, to the RTRK Kazakhstan TV channel. According to the act of recording the fact of the use of published works in the musical headings of some regions of Kazakhstan, the facts of the use of musical works by authors who, according to contracts, ceded the exclusive rights to publish the works of IP E. were recorded. On March 26, 2010, IP E., on the basis of an agreement, transferred to the NGO the rights to manage property rights, as well as the right to protect non-property rights on a collective basis on the territory of the Republic of Kazakhstan and beyond. He sent a complaint to the broadcaster, since the defendant did not have the right to publish the above-mentioned works to an indefinite circle of viewers. The amount of compensation for the misuse of copyright and related rights amounted to 2,615,850 tenge (50 minimum wages per phonogram), which was requested to be forcibly recovered from the defendant.

The court's decision denied the claim on the following grounds. The facts of the use of phonograms performed by the authors are established by the evidence presented to the court and are not disputed by the defendant. At the same time, the court of first instance declared illegal the plaintiff's claims for payment by the defendant, the Television and Radio Broadcaster, to the plaintiff of remuneration for the use of these phonograms as the copyright holder, the Licensee (producer of phonograms) of the exclusive right to albums (phonograms), related (and copyright) rights. The defendant is not responsible for the use of the above-mentioned phonograms on the TV channel, since it carries out the retransmission of mandatory television, radio channels and free-access television and radio channels, performs only the technical function of delivering signals from television and radio companies to the end user, is not a user of the object of copyright and related rights, does not participate in the creation of any program; The plaintiff missed the limitation period for the claim for payment of remuneration for the use of the phonogram. It follows from the case that the phonograms of the songs were used on TV channels, which, in accordance with article 23 of the Law "On Television and Radio Broadcasting", carry out activities to form television and radio channels for their further distribution in broadcasting networks. RTRK Kazakhstan JSC has concluded a public procurement agreement with the National Operator for the provision of services for the distribution of radio and television programs and the transfer of video and audio materials via satellite communication channel. An agreement has been signed to grant a non-exclusive right to retransmit a television and radio channel as part of the "Basic package of programs of the national satellite broadcasting system throughout the Republic of Kazakhstan." According to the contract, the Operator is obliged to receive and provide direct retransmission of the television and radio channel. It is not allowed to temporarily shift, in its entirety, including advertising, including all names, logos and copyright marks, without any changes, interruptions, abbreviations and additions in accordance with the broadcasting network provided by the Broadcasting Company, to ensure the transmission of the signal of the television and radio channel in accordance with the current technical standards of broadcasting. It follows from this that the Operator is not directly involved in the formation of a television program with the inclusion of phonograms of songs for the use of which the plaintiff requests remuneration, it is only the technical operator of the direct retransmission of the RTRK Kazakhstan JSC TV Channel. According to the agreement, the TV and Radio Company is responsible for the content of television and radio channels.

In the event of claims, claims and/or lawsuits from third parties challenging the ownership of copyright and/or related rights to works in the TV and Radio Program, the TV and Radio Company is solely responsible to them. The Broadcasting Company is obliged to settle these claims, claims and/or lawsuits on its own and at its own expense. The court, taking into account the specified terms of the contract, explained to the plaintiff his right to file a claim against the Kazakhstan Broadcasting Company, but the plaintiff insisted on considering his claim against the national operator. The claim was denied due to its presentation to an improper defendant.

The list of the main documents attached to the statement of claim

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases his claims.:

- a document confirming authorship (a certificate of registration if the copyright object is registered); evidence confirming the illegality of the defendant's actions;

- a document confirming the sending of a copy of the statement of claim and the documents attached to it to the defendant or his representative, to third parties;

- a document confirming the payment of the state fee (if the party is exempt from paying it, the grounds for its exemption must be indicated - Article 541 of the Tax Code);

- a power of attorney or other document certifying the representative's authority;

- documents confirming compliance with the pre-trial dispute settlement procedure,

unless otherwise stipulated in the contract;

- a description of the invention, drawings, diagrams, boards, a copy of the application for the issuance of an author's certificate, etc.

           The documents mentioned above, as well as:

- agreement with the user;

- a document confirming the illegal use of the copyright object (audio, video recording; - act of fixation; resolutions of authorized bodies or the court; written calculation of the amount of remuneration due;

- documents confirming compliance with the pre-trial dispute settlement procedure, if this procedure is established by law or provided for by contract.

- documents confirming the intellectual property right (see above);

- agreements concluded in the pre-trial settlement of a dispute.

Laws to be applied in the consideration and resolution of cases

The Constitution.

Civil Code (Chapters 49-55).

The Business Code.

Patent Law No. 427 of July 16, 1999.

Laws:

- dated June 10, 1996 No. 6 "On Copyright and Related Rights";

- Dated November 10, 1998, No. 297 "On the Accession of the Republic of Kazakhstan to the Berne Convention for the Protection of Literary and Artistic Works (Bern, September 9, 1886)";

- No. 54 dated June 7, 2000 "On the Accession of the Republic of Kazakhstan to the Convention for the Protection of the Interests of Producers of Phonograms from the Illegal Reproduction of Their Phonograms (Geneva, October 29, 1971)";

- No. 546 dated April 16, 2004 "On the Accession of the Republic of Kazakhstan to the World Intellectual Property Organization Treaty on Performances and Phonograms (Geneva, December 20, 1996)";

- dated April 16, 2004 No. 547-II "On the Accession of the Republic of Kazakhstan to the World Intellectual Property Organization Copyright Treaty (Geneva, December 20, 1996)";

- Dated February 17, 2012, No. 563-IV "On Ratification of the International Convention for the Protection of the Rights of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, October 26, 1961)".

The World Copyright Convention (Geneva, September 6, 1952, revised in Paris on July 24, 1971, valid in the Republic of Kazakhstan in the order of succession of international obligations and treaties of the former USSR, entered into force for the USSR on May 27, 1973)".

Normative Resolution of the Supreme Court of December 25, 2007 No. 11 "On the application by courts of certain norms of legislation on the protection of copyright and related rights".

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