Illegal acquisition of counterfeit copies of audiovisual works and their sale on the market territory Protection of Copyright and Related Rights
Failure by the courts of the first and cassation instances to comply with the requirements of article 24 of the CPC for a comprehensive, complete and objective investigation of the circumstances of the case led to the unjustified satisfaction of the civil claim. By the verdict of the Ridder City Court of the East Kazakhstan region dated December 20, 2011: K., convicted under part two of Article 184 of the Criminal Code (hereinafter referred to as the Criminal Code) to 1 year of restriction of liberty. The civil claim of the Association of Legal Entities "Kazakhstan Association for the Protection of Copyright and Related Rights" (hereinafter referred to as "KAZASP") has been fully satisfied, material damage in the amount of 211,100 tenge has been recovered in its favor, and a state fee in the amount of 2,111 tenge has been paid to the state revenue. By the verdict of the court, K. was found guilty of illegally acquiring counterfeit copies of audiovisual works at the Zarechny trading market in Ust-Kamenogorsk in August 2011 and selling them on the territory of the Ogonek market in Ridder. Employees of the financial police on October 2, 2011 during operational search activities (hereinafter referred to as MPM) He made a control purchase of a counterfeit DVD-format CD in the amount of 1 piece in the amount of 450 tenge and seized DVD-format CDs with signs of counterfeiting in the amount of 224 pieces. By his actions, K. caused significant material damage (211,100 tenge) to the participant of the KAZASP oil company, LLP "V". The case was not considered on appeal. By a decision of the cassation judicial board of the East Kazakhstan Regional Court dated March 18, 2014, the court's verdict against K. was upheld, while the cassation appeal of the prosecutor of the East Kazakhstan region was not satisfied.The prosecutor's protest raises the issue of the annulment of judicial acts regarding the civil claim and the refusal to satisfy it. Having studied the materials of the criminal case, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan partially satisfied the protest due to the following.
The court verdict reliably established that the convict had purchased 224 counterfeit copies of works (videos) placed on DVDs for the purpose of sale. These actions clearly indicate the commission of a crime under the second part of Article 184 of the Criminal Code. The court decided to destroy the counterfeit copies of the works seized from the convict. In favor of the Association of Legal Entities, of which the partnership is a participant, the damage calculated from the sale price of the counterfeit copy of the work is recovered. The court, satisfying the civil claim of KAZASP in the amount of 211,100 tenge, did not properly motivate its conclusions in this part in the verdict. It does not appear from the materials of the criminal case that the convict caused damage to the public association in the amount of 211,100 tenge, he sold one counterfeit copy of the DVD for 450 tenge. The court has not established in respect of which works, and on the basis of which license agreements, the Partnership acquired the right of the copyright holder to produce and distribute, as well as which specific works (videos). Do the videos correspond to the works in respect of which the author's property rights were transferred to the Partnership? The partnership is a member of a public association, but there is no reliable information that a sublicense agreement has been concluded between the Partnership and the public association, according to which the public association has acquired the right to file a claim on its behalf and recover damages in its favor. The filing of a claim by an improper plaintiff precludes the possibility of its satisfaction.
Subparagraph 5) of Article 49 of the Law "On Copyright and Related Rights" provides for the recovery from the violator of income received as a result of violation of copyright and related rights. By selling one counterfeit copy of the DVD, K. received income in the amount of 450 tenge. There is no data on the other amount of income received by K. as a result of the sale of counterfeit products.45 The public association did not provide evidence of losses incurred or lost income as a result of the actions of the convicted person. In the statement of claim, the public association raised the issue of collecting compensation in the amount of 211,100 tenge. According to subparagraph 6) of paragraph 1 of Article 49 of the Law "On Copyright and Related Rights", compensation payments in the amount of 20 minimum wages (hereinafter referred to as minimum wages) up to 50,000 minimum wages established by the legislation of Kazakhstan and can be collected only if it is impossible to determine income, damage or lost profits. In accordance with the above-mentioned law, the minimum amount of compensation for 20 minimum wages is 319,980 tenge (the minimum wage for 2011 was 15,999 tenge), and the amount of compensation collected by a public organization is 211,100 tenge, that is, less than stipulated by law. However, the court, without paying attention to this, collected this amount. However, in all cases, we are talking about a situation in which the convicted person sold counterfeit copies of the work. The availability of data on the income received or evidence of the amount of damage or lost income precludes the application of compensation. Under the above circumstances, the incompleteness and one-sidedness of the court's consideration of the case led to the unjustified satisfaction of the civil claim. When reviewing the case again, the court of first instance must eliminate the above violations of the law and make a lawful decision. In accordance with paragraph 4 of the sixth part of Article 467 of the CPC, the criminal case must be sent for a new judicial review to the court of first instance, since it was not considered on appeal. Guided by paragraph 5 of the sixth part of Article 467 of the CPC, the Supervisory Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan changed the verdict of the Ridder City Court of the East Kazakhstan region dated December 20, 2011 in respect of K.
The verdict regarding the civil claim for recovery from the convicted person in favor of LLP "V" in the amount of 211,100 tenge and the decision of the cassation judicial board of the East Kazakhstan Regional Court dated March 18, 2014 were canceled. The case has been sent for a new judicial review to the Ridder City Court of the East Kazakhstan region with a different composition of judges.
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