On the application by the courts of certain norms of legislation on the protection of copyright and related rights

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 No. 11.

      The footnote. Throughout the text: numbers "27", "65", "159", "249" replaced with numbers "26", "72", "156", "279", The words "paragraph one" were replaced by the words "paragraph 1" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

     In order to ensure a uniform understanding and correct application in judicial practice of certain norms of legislation on the protection of copyright and related rights, the plenary session of the Supreme Court of the Republic of Kazakhstan

     Decides:

Relations arising in connection with the creation and use of works of science, literature and art (copyright), productions, performances, phonograms, broadcasts of broadcasting and cable broadcasting organizations are regulated by the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Law of the Republic of Kazakhstan "On Copyright and Related Rights" (hereinafter referred to as the Law) and other regulatory legal acts.

     Legislative acts of the Republic of Kazakhstan that strengthen the protection of copyright and related rights are applied if they do not contradict the rules established by international treaties ratified by the Republic of Kazakhstan.

     Currently, the Republic of Kazakhstan is a party to the following international treaties regulating these legal relations:

      Berne Convention for the Protection of Literary and Artistic Works (Bern, September 9, 1886, Law of the Republic of Kazakhstan dated November 10, 1998 No. 297-1 "On Accession to the Berne Convention for the Protection of Literary and Artistic Works");

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

     The Universal Copyright Convention (Geneva, September 6, 1952, 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.);

      International Convention on the Protection of the Rights of Performers, Producers of Phonograms and Broadcasting Organizations (Rome, October 26, 1961, Law of the Republic of Kazakhstan dated February 17, 2012 No. 563-IV "On Ratification of the International Convention on the Protection of the Rights of Performers, Producers of Phonograms and Broadcasting Organizations");

      The World Intellectual Property Organization Copyright Treaties regarding the Protection of Certain Rights to Certain Types of Works (Geneva, December 20, 1996, Law of the Republic of Kazakhstan dated April 16, 2004 No. 547-II "On the Accession of the Republic of Kazakhstan to the World Intellectual Property Organization Copyright Treaty");

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

     The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of its official publication).

Copyrights arise due to the fact that the intellectual creative work of the author (co-authors) has created works of science, literature and art in an objective form, the types of which are listed in Article 972 of the Civil Code, Article 7 of the Law, and operate independently of the registration of the work with an authorized state body.

      Copyright applies to both published and unpublished works, regardless of their content and dignity, as well as the manner and form of expression.

      Copyright applies not only to the work as a whole, but also to a part of it (title, characters) if this part of the work is the result of creative activity and can be used independently.

     Copyrights to a work expressed orally apply only if it is publicly spoken (performed).

Persons who provided technical assistance to the author (printing, correction, etc.) cannot be recognized as co-authors of the work.

      The objects listed in Article 974 of the Civil Code and in Article 8 of the Law, as well as the ideas themselves, methods, processes, methods, concepts, principles, discoveries, facts, do not belong to the objects of copyright and are not provided with legal protection.

Copyrights include:

      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 1 of article 49 of the Law. The general limitation period provided for in paragraph 1 of Article 178 of the Civil Code applies to the claims for the protection of the author's property rights.

     The footnote. Paragraph 4, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of official publication); dated 03/31/2017 No. 2 (effective from the date of the first official publication).

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 the event of the death of the author (co-authors), the period 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 the death of the author (the last of the co-authors).

      If the fifty-year term of protection of the property (exclusive) rights of the author (co-authors) of the work previously provided for in paragraph 1 of Article 982 of the Civil Code and paragraph 1 of Article 28 of the Law expired before November 26, 2005, the date of entry into force of the Law of the Republic of Kazakhstan "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on intellectual Property", then The seventy-year term of protection of these rights does not apply.

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.

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.

      The exclusive (property) rights in relation to the work that the author wishes to create in the future cannot be transferred under the copyright agreement.

     The terms of the copyright agreement that restrict the author's rights to create future works on a specific topic or in a specific field of science, literature or art, as well as contradict the provisions of the Law, are invalid.

Performers, producers of phonograms, and broadcasting and cable broadcasting organizations have related non-property and property rights provided for in articles 37, 38, 39, and 40 of the Law, respectively, for productions, performances, phonograms, and broadcasts of broadcasting and cable broadcasting organizations.

      Related non-property rights are inalienable.

      The related property rights of a performer (for example, an actor, singer, dancer, musician, performer of a variety, circus or puppet show, conductor, stage director) to perform by reproduction; a phonogram producer to reproduce and distribute a phonogram or the rights of an on-air and cable broadcasting organization to use the program may be fully or partially ceded to other persons on the basis of based on the license agreement.

     At the same time, lighting designers, sound formers and other persons performing technical functions in the process of performing a work, making phonograms or broadcasts do not have related property rights.

      To clarify that, in accordance with subparagraphs 18), 19) of Article 2 of the Law, reproduction means the production of one or more permanent or temporary copies of works or objects of related rights in any way and in any form, in whole or in part, directly or indirectly. In this case, the types of reproduction are the production of one or more copies of a two-dimensional or three-dimensional work, as well as any permanent or temporary storage of works or objects of related rights in any material form, including in an open information and communication network.

     Reproduction or reprographic reproduction is understood as facsimile reproduction in any size and form of one or more copies of originals or copies of written and other graphic works by photocopying or using other technical means other than publication, including printing, scanning, digital copying.

     The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of its official publication).

      13-1. The placement of objects of copyright and (or) related rights in telecommunication networks, in particular, on the Internet, is the use of these objects in the form of making them publicly available in accordance with subparagraph 10-1) of paragraph 2 of Article 16 of the Law. Thus, recording a work or an object of related rights in the memory of an electronic computer is considered use if, on the initiative of the person who made the recording, an indefinite circle of people gets access to this work or object of related rights. Copies of works or objects of related rights created (obtained) as a result of such use in violation of the Law are considered counterfeit.

     Persons who have committed such acts are recognized as infringers of copyright and/or related rights.

     The footnote. The regulatory resolution was supplemented by paragraph 13-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 03/31/2017 No. 2 (effective from the date of the first official publication).

An author's agreement as a bilateral transaction may be registered with an authorized state body only if such registration is provided for by the parties to the agreement.

      Property (exclusive) rights that have not been assigned under a copyright or license agreement are considered not transferred.

     Property (exclusive) rights assigned on the basis of an author's or license agreement may be transferred to third parties by the holder of these rights for a period and in an amount not exceeding the specified period and amount in the said agreements, and only if such assignment is provided for by these agreements.

      Violation of the essential terms of the copyright agreement provided for in paragraph 1 of Article 32 of the Law is a violation of copyright, since these actions are carried out outside the powers granted by the author. Copies of works and phonograms produced and/or distributed in violation of the essential terms of the exclusive rights transfer agreement are considered counterfeit. In particular, if the reproduction exceeds the circulation stipulated in the contract, then the excess of the circulation should be considered as a violation of copyright and related rights.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of its official publication).

If the work was created in order for the employee to fulfill his work duties, on the official assignment of the employer, then the personal non-property rights of the author of the work belong to the employee. If the work was created during working hours or using the employer's property, but does not meet the criteria specified in this paragraph, it cannot be classified as official.

      The amount and procedure for payment of royalties for the use of an official work is established by an agreement between the author and the employer. Such a contract is of a civil law nature and is subject to the provisions established by Chapter 23 of the Civil Code.

     However, after ten years from the date of submission of the work, and with the consent of the employer - earlier, the right to use the work and receive royalties passes to the employee in full, regardless of the contract concluded with the employer.

In the absence of other evidence, the author of the work is considered to be the person indicated as the author on the original or a copy of the work.

      A co-authored work is considered to form an inseparable whole if its constituent parts cannot be used independently. If such a work forms an inseparable whole, then none of the co-authors or the heir of any co-author has the right to prohibit the use of such a work in the ways provided for by legislative acts without sufficient grounds.

      Disputes about co-authorship of a work forming an inseparable whole are resolved by the court, taking into account the fact of recognition of co-authorship at the time of publication of such work.

     A work created by the joint creative work of co-authors and consisting of parts, each of which has an independent meaning, refers to works with separate co-authorship. Each of the authors may independently use the part of the work created by him, which has an independent meaning, at his discretion, unless otherwise provided by agreement between them.

A composite work is a collection consisting of works by different authors and other materials selected and/or arranged in a certain order by the creative work of the compiler, while respecting the rights of the authors of each of the works included in the collection. The authors of the works included in the collection have the right to use their works independently, regardless of the composite work, unless otherwise provided by the copyright agreement with the compiler of the collection.

     The exclusive rights to use the published encyclopedias, collections of scientific papers and other periodicals belong to the publisher, however, the authors of the works included in such editions retain the exclusive rights to use their works regardless of the publication as a whole.

An audiovisual work (motion picture, video, and other works specified in paragraph 4 of Article 2 of the Law) is considered publicly performed if it is shown in cinemas or other places open to free access, or in places where persons who do not belong to the usual family circle are present.

      The usual family circle should include not only persons who are related to each other, but also other persons whose relationship with these relatives indicates the duration of communication, the trusting nature of the relationship, or the presence of other circumstances that allow us to assert the existence of common interests.

The authors of a musical work (with or without text) who have specially created it for inclusion in films, videos, performances, filmstrips, slide films and similar works have the right to receive royalties for the use of this musical work at each public screening, public performance and communication, rental (hiring) of these works. audiovisual works. The authors of previously created musical works that are subsequently included in an audiovisual work or performance have the same right.

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

Works created as a result of translation, alteration, arrangement or other processing of existing works are considered derivative works.

     The introduction into civil circulation of a derivative work in violation of the copyright of the author of the main work or the property rights of the heirs or holders of the property rights of the author entails liability provided for by legislative acts of the Republic of Kazakhstan.

The lawful publication of a work (introduction into civil law circulation) is understood as the implementation, with the consent of the author of the work, of actions that for the first time make the work accessible to an indefinite circle of people through its publication, public display, public performance, public disclosure, purchase and sale of copies of the work and other means.

     When publishing a work anonymously or under a pseudonym, the publisher of the work is considered to be the author's representative and protects the legitimate rights and interests of the author. When a publisher files a claim in defense of the author's rights and legitimate interests, a copy of the work with the publisher's name is attached to the application. The original name of the author of the work is indicated in the copyright agreement, which establishes the relationship between the author and the publisher. The specified contract is not examined at the court session. If the author does not disclose his identity before the end of the court session, then, if the claim is justified, the court decides to satisfy the claim in favor of the publisher.

In the cases provided for in paragraph 1 of Article 18, articles 19 , 20 , 21 , 22 , 23 , 24 and 25 of the Law, a lawfully published work may be used without the author's consent and without payment of royalties.

Without the consent of the producer of the phonogram and the performer whose performance is recorded on the phonogram, it is allowed to publicly perform the work using technical means in bars, cafes, restaurants and other public places serving citizens, but with payment of royalties, if such performance is performed in the presence of persons not belonging to the usual family circle. When deciding whether the persons present at such a performance belong to the usual family circle, one should take into account not only the existence of family relations, but also personal ties, the period of communication and the nature of the relationship, as well as other circumstances (wedding, anniversary or other solemn event, etc.).

      For the specified type of public performance, royalties are paid in the amount stipulated by Resolution of the Government of the Republic of Kazakhstan dated October 20, 2004 No. 1083 "On Approval of minimum Royalties for certain types of use of works". In this case, the performer or producer of phonograms does not have the right to recover compensation provided for in article 49 of the Law.

Counterfeit copies of a work, a phonogram of an audiovisual work, a broadcast of an organization of broadcasting and cable broadcasting are understood to mean copies of an object of copyright and related rights that are manufactured, distributed or otherwise used in violation of the personal non-property or property (exclusive) rights of the author, performer, producer of phonograms, broadcasting and cable broadcasting organizations, or copies of lawfully published objects copyright and related rights, from which information about the author or the holder of related rights has been deleted or unlawfully applied. Counterfeit copies also include copies of a work or phonogram exceeding the number of copies (circulation) provided for in a copyright or license agreement, distributed in a territory not provided for in the agreement, made on a material medium not provided for in the said agreements, as well as works or phonograms that unlawfully include other objects of copyright and related rights.

      When determining the significance of the damage, the significance of the amount, the presence of major damage or a large amount when establishing the fact of violation of copyright and related rights, entailing criminal liability, the explanations contained in paragraphs 2) and 38) of Article 3 of the Criminal Code of the Republic of Kazakhstan should be taken into account.

     The concept of counterfeit copies of works and (or) phonograms is legal, therefore, the issue of counterfeit copies of works or phonograms cannot be raised before an expert. When appointing an expert examination in connection with the need to study objects of copyright and (or) related rights, the courts must comply with the requirements that it is unacceptable to involve persons related to labor or contractual relations with copyright holders as experts or specialists. If it is necessary to obtain information about special forms of protection of copyright and related rights (special labels on discs, works of art, etc.) that are known only to the copyright holder, his employees and other related persons may be summoned to court only as witnesses.

     The footnote. Paragraph 23, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 3 (effective from the date of official publication); dated 06/25/2015 No. 3 (effective from the date of official publication).

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 organization of broadcasting and cable broadcasting, 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.

      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 the heirs of the author or performer are absent or 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 contract has been concluded between the named organization and the author or performer for the management of their property (exclusive) rights on a collective basis.

      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 that manages property rights on a collective basis on its own initiative does not have the right to waive a claim filed in the interests of the author or performer - members of the organization, or to conclude a settlement agreement, the condition of which is to waive compensation for damages caused by the defendant, to refuse to recover 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.

     The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of its official publication).

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.

      The printing house, which prints copies of the work in accordance with the contract and 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.

     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.

In accordance with article 26 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), cases on the protection of infringed copyright or related rights, including in connection with the creation and use of an official work, are within the jurisdiction of district (city) courts.

If the parties to a dispute arising from infringement of copyright or related rights are legal entities or citizens engaged in business activities without forming a legal entity, then such a dispute is subject to the jurisdiction of a specialized interdistrict economic court. At the same time, it does not matter whether the citizen has registered with the tax authority in person as a person engaged in entrepreneurial activity without forming a legal entity.

     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, are considered in courts of general jurisdiction.

     Claims for the protection of infringed copyrights or related rights are filed in court at the location of the defendant. Claims arising from an author's or license agreement that defines the place of performance may be brought to court at the place of performance of the said agreements.

     The footnote. Paragraph 26, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 3 (effective from the date of official publication); dated 06/25/2015 No. 3 (effective from the date of official publication).

In accordance with subparagraph 2) of Article 616 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", plaintiffs are exempt from paying state duties when filing lawsuits in cases related to the protection of violated non-property and (or) proprietary copyrights or related rights.

     The footnote. Paragraph 27 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of official publication); dated 04/20/2018 No. 7 (effective from the date of the first official publication).

Since Article 9 of the Civil Code and Article 49 of the Law provide that the protection of infringed copyrights or related rights in civil proceedings may be carried out in the ways listed in the law, when considering the plaintiff's application for securing the claim, the court in accordance with Article 156 of the CPC has the right to apply such an interim measure that corresponds to the claimed claim.

      If a claim is made to recognize the right or to restore the situation that existed before the violation of the right, the judge may, for example, prohibit the defendant from performing any actions to reproduce or distribute the disputed object of copyright or related rights, to seize copies of the work, phonograms, broadcast and cable broadcasting programs.

      If a requirement is made to suppress actions that violate the right or pose a threat of its violation, the judge may, for example, seize manufactured copies of the work, materials intended for use in the manufacture of counterfeit copies, prohibit the defendant from performing specific actions that are committed by the defendant in violation of copyright or related rights, or prohibit the defendant from performing actions, which in their content indicate preparations for the violation of the legitimate rights and interests of the copyright or related rights holder, about the transfer of the purchased equipment for safe storage.

      If a claim is made for damages, including lost profits, for recovery of income, or for recovery of compensation instead of compensation for losses or income, the judge has the right to seize the debtor's property held by him or other persons.

     The court's ruling on securing the claim should not contain conclusions on the merits of the dispute and prejudice the decision on the case.

     The footnote. Paragraph 28 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2015 No. 3 (effective from the date of its official publication).

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 copyrights 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 organization of broadcasting and cable broadcasting. Otherwise, the defendant must be recognized as a violator of copyright or related rights and brought to civil liability.

In case of violation of the personal non-property rights of the author or performer of the work, the author or performer has the right to demand compensation for moral damage.

     Since the personal non-property rights of the author or performer of a work do not pass to the heirs either by law or by will, the heirs do not have the right to file a claim for compensation for moral damage in their favor, and the violated personal non-property rights of such authors and performers are subject to protection in other ways provided for by law.

The grounds provided for in Article 279 of the CPC for leaving an application without consideration are exhaustive, and therefore the plaintiff's representative does not have the right, on his own initiative, unless such authority is granted to him by a duly executed power of attorney, to petition the court to leave an application for the protection of infringed copyright or related rights without consideration.

When satisfying a claim for the protection of infringed copyright or related rights, the court has the right to make a decision on the confiscation of counterfeit copies of a work or phonogram, as well as materials and equipment directly used to reproduce such counterfeit copies, regardless of whether such a claim was made by the plaintiff.

      Counterfeit copies of a work or phonogram, taking into account the opinion of the plaintiff, may be transferred by the court to the plaintiff if such copies meet the quality requirements. If the counterfeit copies have not been sold, then the plaintiff's claim for recovery of income or damages is not subject to satisfaction.

     If counterfeit copies do not meet the quality requirements, they must be destroyed by court order.

     The footnote. Paragraph 32 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 3 (effective from the date of its official publication).

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

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