Copyright in a work of science, literature and art arises by virtue of the fact of its creation.
For the creation and exercise of copyright, registration of the work, other special design of the work, or compliance with any formalities are not required. In order to notify about their exclusive property rights, the author and (or) the copyright holder has the right to use the copyright protection mark, which is placed on each copy of the work and necessarily consists of three elements: the Latin letter "C" in a circle; the name(s) of the owner of the exclusive copyright and the year of the first publication of the work. She filed a lawsuit against IP "R" to recover compensation for copyright infringement, stating that she is a Kazakhstani artist, the author of a number of works of fine art, including works under the names "K" and "D". On August 27, 2014, the defendant IP "R" used by distributing through sale at a retail outlet located in Almaty, in the building of the railway station "A", two of her works of fine art under the names "K" and "D" at a price of 400 tenge, in the form of round souvenir magnets.
The works were used by the defendant without obtaining written permission from the plaintiff to use the works through distribution, without concluding a written copyright agreement and without paying royalties. P. asked the court to recover compensation from the defendant IP "R" in her favor for the use of two works of fine art belonging to her in violation of copyright in the amount of 798,640 tenge, and Also, 200,000 tenge is included in the reimbursement of expenses for the representative's assistance. The claim was dismissed by the decision of the Turksib District Court of Almaty dated May 08, 2015. According to the plaintiff's appeal, by the decision of the appellate judicial board of the Almaty City Court dated July 16, 2015, the court's decision was changed: regarding the refusal to satisfy claims for compensation for copyright infringement in the amount of 396,400 tenge, it was canceled, with a new decision on the satisfaction of the claim in this part.
Copyright in a work of science, literature and art arises by virtue of the fact of its creation.
With IP "R" in favor of P. compensation for copyright infringement in the amount of 396,400 tenge was collected, and court costs were reimbursed. The court found that according to the certificates of state registration of copyright rights No. 417 and No. 416 dated March 31, 2014, issued by the Intellectual Property Rights Committee of the Ministry of Justice of the Republic of Kazakhstan, exclusive property rights to copyright objects under the names "K" and "D" were registered for the item. The court of first instance, refusing to satisfy the plaintiff's claims for compensation for copyright infringement, concluded that the defendant had purchased these souvenir magnets on the wholesale market and was not a manufacturer of souvenir magnets. That is, the manufacturer of souvenir magnets, who used these images by applying them to souvenir magnets, is not an identified third party, but the defendant is only a bona fide buyer. The court also concluded that according to Article 976 of the Civil Code, Article 9 of the Law, the holder of exclusive copyright may use the copyright protection mark, which is placed on each copy of the work and consists of three elements: the Latin letter "C" in a circle, the name(s) of the holder of exclusive copyright, the year of the first publication of the work. Unless proven otherwise, the holder of the exclusive copyright is considered to be the person designated in the protection mark. The presumption of authorship (unless otherwise stated, the author of the work is considered to be the person indicated as the author on the original or a copy of the work) applies exclusively to the author himself. The souvenir magnets with images purchased and provided by the plaintiff as evidence in the amount of 2 pieces had the inscription "K" and did not have any security signs. The court of appeal, changing the decision of the court of first instance, indicated that IP "R" used by distributing through sale at a retail outlet located at the address: Almaty, the building of the railway station "A", two works of fine art named "K" and "D" at a price of 400 tenge in the form of round souvenir magnets, the copyright of which is registered with the plaintiff. This fact is confirmed by the submitted product receipt, from which it follows that IP "R" has sold round magnets nationally.
In accordance with article 2 of the Law, the author is an individual whose creative work has created a work of science, literature, art; copyright is the personal non–property and property rights of the author. Article 7 of the aforementioned Law stipulates that literary works, paintings, sculptures, graphics and other works of fine art, as well as other works, are objects of copyright. According to paragraph 1 and subparagraph 1-2 of paragraph 2 of Article 15 of the same Law, the author or another copyright holder owns the property (exclusive) rights to use this work in any form and in any way. These rights mean the right to carry out, allow or prohibit the following actions: to reproduce the work (the right to reproduce); to distribute the original or copies of the work in any way: to sell, change, rent, perform other operations (the right to distribute). The board found the court's conclusions unfounded in terms of the fact that the plaintiff was obliged to place a copyright protection mark on each copy of the work, as well as to undergo state registration of the rights to paintings. In accordance with article 9 of the Law, copyright in a work of science, literature and art arises by virtue of the fact of its creation. Copyright does not require registration of the work, other special design of the work, or compliance with any formalities. Also, in accordance with this Law, the use of a copyright protection mark is a right, not an obligation, of the copyright holder. At the meeting of the appeals board, the defendant and his representative did not dispute that the images on the disputed magnets were identical to the original works of P. – "K" and "D". The court of first instance, having established the fact that the defendant used two of the above-mentioned works by the author P., applied to souvenir magnets, indicated that IP "R" is a bona fide buyer, since he made the purchase on the wholesale market. However, the defendant, IP "R", did not provide reliable evidence that when selling this product he acted in accordance with the requirements of the Law, since P. did not have permission to distribute (sell) the works of the author. According to paragraph 25 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 11 "On the application by courts of certain norms of legislation on the protection of copyright and related rights", the proper defendant in the case of the protection of copyright and related rights is a person who has violated personal rights by his actions. the non-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. According to paragraph 29 of the said regulatory resolution, 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 author's rights.
Otherwise, the defendant must be recognized as a violator of copyright or related rights and brought to civil liability. The defendant did not provide reliable and acceptable evidence in the court of first instance that the product was purchased legally. Moreover, in the response submitted to the court of first instance, the defendant IP "R" emphasized that he purchases goods in the wholesale market in packages without examining its contents individually. IP "R" motivated its actions by the fact that it is a seller of a wide range of goods and cannot check each product for intellectual property. Consequently, these circumstances refute the defendant's arguments that he is taking reasonable measures to avoid infringement of intellectual property rights. In such circumstances, the board came to a reasonable conclusion that the plaintiff had proven the fact of the defendant's misuse of his rights, and therefore compensation was collected from the defendant for copyright infringement. Thus, it follows from the above example that errors in the application of substantive law made by the court of first instance were promptly eliminated by the court of appeal, and thus the violated right of the author of P. was restored. Meanwhile, a similar claim by P. to L., IP "And" for the recovery of compensation for copyright infringement by the decision of the Bostandyk district Court of the city Almaty was also satisfied on July 13, 2016, and compensation was collected from the defendants in favor of the plaintiff for copyright infringement. The plaintiff based the claim on the fact that the defendants had unlawfully used her artwork "Zh" in the production of the banner and in the shop window.
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