Kazakhstan: Copyright Protection In Kazakhstan

Among the relationships regulated by civil law, a significant place is occupied by relationships related to the creation and use of works of science, literature, and art. The regulations governing these relationships within the civil law are known as copyright.

In this article, we will explore the key considerations and legal framework surrounding copyright protection in Kazakhstan, shedding light on the rights and obligations of creators, the scope of protection and recent developments in this dynamic field.

What kinds of works of authorship are protected by the copyright law?

According to paragraph 2 of Article 6 of the Law of the Republic of Kazakhstan "On Copyright and Related Rights" dated June 10, 1996 No. 6-I (hereinafter referred to as the Law on Copyright), copyright protects both published and unpublished works that exist in any objective form, in particular:

• Literary works (manuscript, typescript, musical notation, etc.)
• Oral (public utterance, public performance, etc.)
• Sound or video recordings
• Motion pictures and other audiovisual works (drawing, sketch, picture, plan, drawing, film, television, video or photo frame, etc.)
• Pictorial, graphic, and sculptural works (sculpture, model, layout, structure, etc.)
• Software for electronic computing machines

However, not all works that meet the characteristics of an object of copyright can be recognized. Exceptions are stipulated in the article 974 of Civil law and article 8 of the Law on Copyright. Works that are not subject to copyright include:

• official documents (laws, court decisions, other texts legislative, administrative, judicial and diplomatic), and their official translations
• state symbols and signs (flags, coats of arms, orders, banknotes and other state symbols and signs)
• works of national folklore
• informational messages about events and facts.

Copyright registration in general

There is no compulsory registration system for the works of science, literature or art. Copyright arises of the fact of the creation of a certain work. Thus, there is mandatory registration for copyright.

However, according to the article 9-1 of the Law on Copyright, in order to confirm the authorship of a work the owner of the copyright may register such a work in an official registry at any time during term of copyright protection. State registration of rights in relation to works protected by copyright is carried out by the competent authority (Department for Intellectual Property Rights of the Ministry of Justice of the Republic of Kazakhstan) at the request of the author(s) or copyright holder.

The owner of the authorship need to submit an application, copy of the work and the copy of the payment. Instead of a copy of the work, the application may be accompanied by sketches, drawings or photographs, and in relation to computer programs or databases - an abstract including the name of the program or database, last name, first name, patronymic (if it is indicated in the identity document) of the author , date of creation, scope, purpose, functionality, main technical characteristics, programming language, as well as the code. The owner is then issued with the certificate of state registration of a particular work that is protected by the copyright.

Duration of copyright

According to the paragraph 1 of the article 28 of the Law on Copyright, copyright in a work subsists from its creation and endures for a term consisting of the life of the author and 70 years after author's death.

In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death.

In the case of an anonymous work, a pseudonymous work the copyright endures for a term of 70 years from the year of its first publication. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under paragraph 1 of article 28, the copyright in the work endures for the term specified by paragraph 1, based on the life of the author or authors whose identity has been revealed.

In the case of the copyright in a work first published within thirty years after the death of the author is valid for seventy years after its publication. In this case, the specified period is calculated from January 1 of the year following the publication of the work.

Possession of the rights

The first owner of copyright is the "author" of the work. "Author" means an individual whose creative work has created a work of science, literature or art.

If the work was created at the request, the legal owner of the copyright is the customer, unless otherwise provided in the relevant agreement between the author and the customer.

In accordance with paragraph 1 of Article 33 of the Law on Copyright, the author's order agreement must provide for a period during which the property rights to use the work must be transferred to the customer, i.e. the contract concerns the transfer of copyright that will arise after the creation of the work.

Transfer of ownership

In accordance with article 33 of the Law on Copyright, transfer of ownership rights must be formalized in a written agreement signed by authorized representatives of the contracting parties. The author's agreement does not require registration, notarization and legalization. The ownership rights of the author may be assigned in whole or in part, and may also be transferred for use under an author's agreement.

According to the article 40-1 of the Law on Copyright, author's license agreement is formalized in writing and signed by authorized representatives of the contracting parties. The author's license agreement does not require registration, notarization or legalization.

Rights of the authors of copyright

Proprietary copyrights, i.e. exclusive rights to use the work in any form and by any means belong to the author or copyright owner. The exclusive rights of the author to use the work mean the right to carry out, permit or prohibit the following actions:

• reproduce the work (the right to reproduce);
• distribute the original or copies of the work in any way, including sale, rental, etc. (the right to distribute);
• import copies of the work for distribution purposes, including copies made with the permission of the author or other copyright owner (import right);
• publicly show the work (the right to public display);
• publicly perform a work (the right to public performance);
• etc.

The author owns the following personal non-property copyrights in relation to his work:

• the right to be recognized as the author of a work, including by indicating the name of the author properly on copies of the work and in any of its public use, if this is practically possible (right of authorship);
• the right to use a fictitious name (pseudonym) instead of the real name, as well as to require the indication of a pseudonym on copies of the work and in any of its public use, or to refuse to indicate the name, i.e. remain anonymous (right to a name);
• the right to the inviolability of the work, including its title, the right to oppose any distortion, distortion or other alteration of the work, as well as any other infringement that could damage the honor or reputation of the author (the right to protect the reputation of the author);
• the right to open access to the work to an indefinite circle of persons (the right to make public).

Organizations managing property rights on a collective basis, provided for all works protected by copyright. An organization that manages property rights on a collective basis must perform the following functions on behalf of the holders of copyright and related rights it represents and on the basis of the powers received from them:

• enter into license agreements with users to use the rights managed by such an organization; agree with users the amount of remuneration and other conditions on which license agreements are concluded;
• agree with users on the amount of remuneration in cases where this organization collects such remuneration without concluding a license agreement;
• collect the remuneration stipulated by the license agreement;
• distribute and pay the collected remuneration to the holders of copyright and related rights represented by it

Recent developments of the Law on Copyright

Many legislative changes have already been adopted and put into effect on January 1, 2015. The changes affected the copyright regime to a certain extent and clarified some practical issues that had not previously been considered by the national courts.

In accordance with the amendments, administrative liability for copyright infringement was excluded from the Administrative Code, since such infringement is now a criminal offense.

According to the paragraph 2-1 of the article 44 of the Law on Copyright, users are required to submit a report to the organization managing property rights on a collective basis on the use of objects of copyright and related rights, as well as other information and documents necessary for the collection and distribution of remuneration, the list and deadlines for submission of which are determined in the license contract.

According with article 44 of the Law on Copyright, if it is impossible to distribute and identify the collected remuneration due to the failure of the users to submit these reports, the organization managing property rights on a collective basis is obliged to keep such undistributed remuneration, and after three years from the date of its receipt on the account of the organization, include it in the amount to be distributed in accordance with the procedure determined by the general meeting of holders of copyright and related rights.

The amounts of the collected remuneration, distributed and accrued to specific owners of copyright and related rights, must be kept on the account of the organization managing property rights on a collective basis, and be paid to the corresponding author and / or right holder as such persons are found or applied, regardless of the period of storage of such amounts organization's account.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.