Copyright infringement in Kazakhstan these days is frequent and widespread. More often than not, many people do it simply out of ignorance and not for intentional purposes. People already know that copyrights are protected by trademarks, logos, company names, songs and music, etc. But few people think that even a picture from Google or a computer program downloaded from the Internet are also protected by copyright. And to use them without permission or purchase is to violate the copyright of their creators.
There is an opinion that only those objects with special signs, copyright symbols or notices about the responsibility for their use are protected by copyright. But this is not true. Just because content on the Internet is freely available doesn’t mean it can be used for its own purposes for free. After all, the author will have no trouble proving his authorship and holding the violator of the law liable.
Liability for copyright infringement
In Kazakhstan, criminal liability for copyright infringement is foreseen, and the Law on Copyright and Related Rights provides for the recovery of compensation for copyright infringement.
Criminal liability
The norms of the Criminal Code of Kazakhstan establish penalties for illegal use of copyright objects. Under Article 198 of the Criminal Code of the RK, unlawful actions are considered:
- Illegal use of the objects of copyright
- Attribution of authorship or compulsion to co-authorship
Illegal use of objects of copyright means reproduction, distribution, importation, demonstration, translation without the consent of the author, including without payment of royalties.
Authorship misappropriation – when a person declares himself/herself the author of someone else’s work by releasing it in whole or in part under his/her own name. A synonym of attribution is the concept of “Plagiarism,” which means the intentional appropriation of authorship. However, the concept of attribution is broader than plagiarism.
Coercion to co-authorship is the influence on the author by various means (by blackmail, threats or violence) in order to obtain his consent to be named as co-author of the guilty person.
Art. 198 of the Criminal Code of the RK lists the following types of punishment:
- Fine
- Corrective labour
- Restriction of freedom
- Deprivation of liberty
- Deprivation of the right to occupy certain positions or engage in certain activities
The type of punishment depends on the severity, amount of damage and other circumstances.
Compensation for copyright violation
The copyright holder can file a separate lawsuit against the infringer and demand compensation for the damages caused. Compensation can be recovered from the copyright infringer in the amount of 100 to 15 thousand monthly calculation indices (MCI) (approximately from 291,700 to 43,755,500 tenge). The amount of compensation is determined by the court.
What do I do if there is a copyright infringement?
If your copyrights have been infringed, you need to take certain steps to protect them. It is easier to protect yourself when copyrights are registered. According to Article 9 of the Copyright Law, copyright arises by virtue of the fact of its creation. Registration of a work, or other special registration or compliance with any formalities, is not required for the emergence and exercise of copyright. However, registration will greatly facilitate the process of proving authorship in court. Of course, there are other ways to prove authorship, but obtaining a certificate is the easiest of them all.
So, in case of copyright infringement in Kazakhstan it is necessary to:
- Notarize the violation. It is important to prepare a proof base before going to court.
- Send a notice to the infringer demanding to stop the violation. It is not necessary to bring the case to court; as a rule, infringers are ready to fulfill the author’s demands in pre-trial order.
- Go to court to enforce your rights. If the infringer refuses to comply with your demands, you have the right to defend your rights.
Practice
In our work we often come across all sorts of cases and examples of copyright infringement. Here is a recent example.
The Client is the author of photographic works whose rights were violated by copying and uploading them on the Marketplace without permission.
Our lawyers collected and processed the evidence, prepared and sent a pre-trial claim letter and filed a lawsuit.
The result of the case was a settlement agreement with the condition of compensation by the defendant on a voluntary basis, which was also prepared by our specialists.
Statistics
- The Ministry of Internal Affairs announced data for the first half of 2022 – seven criminal cases were filed for violation of copyright and related rights, three of which were registered this year.
- According to legal statistics, in the first six months of 2022 the courts of first instance received 164 applications for copyright protection.
- The court of appeal instance on disputes related to intellectual property, namely on the protection of copyright – 33.
- One copyright petition was filed with the court of cassation instance.
Conclusion
Kazakhstan is a member of the World Intellectual Property Organization, which protects authors and their intellectual property rights. Also, every year new amendments to intellectual property legislation are approved to provide state-guaranteed legal assistance. Therefore, it is extremely important before using someone’s song, photo or video to find out if your actions are lawful. This will save you a lot of money in the future.
Law firm “ARBIS” provides services for the protection and representation of clients in court, as well as for the registration of copyright “turnkey”. We will be glad to help you!