Jurisdiction - Disputes over the protection of infringed copyrights and related rights
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. 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. Claims in disputes on the protection of copyright and related rights are filed according to the rules of jurisdiction established by Chapter 3 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), that is, disputes in this category are subject to the general rules of jurisdiction at the location and residence of the defendant, and in cases provided for by the copyright and license agreement, the rules of contractual jurisdiction.
The limitation period 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. When considering cases in this category, it should also be borne in mind that, in accordance with paragraph 1-1 of article 49 of the Law, a mandatory pre-trial dispute settlement procedure is provided. According to this rule, a claim is brought to court after the appeal of the subject of copyright or related rights, whose rights and legitimate interests have been violated, to the user of these rights or another person, unless otherwise provided by the contract. However, the courts do not always comply with these requirements. Thus, M.'s claim against LLP "I", LLP "K" for compensation for the misuse of copyright objects was accepted by the court and considered on its merits, despite the fact that the plaintiff did not comply with the mandatory pre-trial dispute resolution procedure, that is, before filing a lawsuit with M. She did not address any claim to the defendants regarding copyright infringement (by the decision of the District court No. 2 of the Almaly district of Almaty dated June 02, 2016, M.'s claim was denied).
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