Copyright applies to works of science, literature and art that are a result of creative activity, regardless of their designation, merit and style of expression. Computer software is equated to writings and is recognized as a copyright object.
Copyright to said works arises upon their fixation in material form, and it is from that moment that the author acquires an exclusive right to his/her creation (the property right to use his/her work in any manner at his/her discretion for a specific term prescribed by the law). No state registration is required for an exclusive right to arise, but it is recommended in order to enforce rights in courts.
No official documents (laws, court judgments, translations thereof), state symbols and insignia, folk arts, information reports on events and facts can be copyrighted works.
Primary copyright owners are authors whose creativity resulted in a work of art.
The scope of the author’s rights can be divided into two classes of property rights and non-property rights. The property rights encompass the ways in which works can be used as prescribed by legal acts (the list of such ways is not exhaustive and is constantly updated as science advances. The property rights include the right to reproduce, distribute, broadcast over-the-air and by cable, adapt, etc.
The author also enjoys the following non-property rights:
- the right to be recognized as the author of a work;
- the right to use and to be named by his/her fictive name (nickname) instead of the real name on the copies of his/her work and in any public performance thereof , or to decline the use of his/her name;
- the right to counteract any distortion, perversion or any other alteration of his/her work; and
- the right to make the work available to an unlimited group of people. Unlike property rights that can be freely assigned to third parties, personal non-property rights are inalienable rights of an author.
Non-property rights are protected perpetually. Generally, the property right to a work subsists for the whole life of the author and 70 years after his/her death. Once that copyright expires, the work falls into the public domain. Thereafter the work may be freely used by any person without any payment of royalties. At the same time, the right of authorship, the right to the name, and protection of the author’s reputation persist and should be observed.
Property rights to copyrighted works can be transferred on the basis of civil contracts called a copyright agreement. The law identifies the following types of the copyright agreement: an agreement as to disposal of the copyright, agreement as to partial copyright disposal, and exclusive and non-exclusive copyright licenses. Each agreement differs in scope of assigned rights. Property rights may also be assigned under an employment agreement (the legislation of the Republic of Kazakhstan provides for a concept of works produced at the work place), commissioning agreement or inherited.
Kazakhstan joined the international system of protection of works by way of acceding The Berne Convention for the Protection of Literary and Artistic Works, 1886, and The Universal Copyright Convention, 1952. In the Republic of Kazakhstan, any works made public in a country that is a party to any of the two conventions or whose authors are citizens or permanent residents of such country are granted national treatment.
Related rights are closely connected with copyright and arise in connection with the use of copyrighted objects. Copyrighted objects include phonograms, performances (staging), and broadcasts by air and cable broadcasting organizations (a set of sound and video signals aired or broadcast by cable using technical aids). As in the case of copyright no registration is required for related rights to emerge.
Performers, phonogram producers and air or cable broadcasting organizations are the holders of related rights.
Holders of related rights acquire property rights, whereas performers also acquire personal non-property rights in relation to their performance.
Property rights to related right objects can be transferred under a full or partial assignment agreement or under an agreement for the assignment of exclusive or non-exclusive rights (with the last two being a license agreement).
Property rights to related right objects are also valid for 70 years of the first performance (in the case of performers), the first publication (in the case of phonograms), or the first airing or broadcast by cable (in the case of air and cable broadcasting). Personal non-property rights are protected perpetually.
Upon expiry of the related rights to performances, staging, phonograms, broadcasts of air or cable broadcasting organizations, they fall into the public domain.
The Republic of Kazakhstan ratified the WIPO Performances and Phonograms Treaty (WIPO Treaty). Under the WIPO Treaty, contracting parties should accord the protection provided under the treaty to the performers and producers of phonograms who are nationals of other contracting parties with regard to the exclusive rights and to the right to equitable remuneration in the scope and amount accorded to their own nationals.
As mentioned above, registration of the rights to copyrighted objects and related right objects is not required. However, such registration is recommended. The certificate of registration of a copyrighted object or a related right object proves that:
- the registered and deposited object is a copyrighted or related right object;
- the copyrighted or related right object has been created no later than the date specified in the certificate;
- the object is kept at the authorized agency for registration of copyrighted and related right objects, and can be compared with the opposed object, if necessary;
- the rights to the copyrighted or related right object belong to the individual/individuals specified in the certificate.
A certificate of registration of the rights to copyrighted or related right objects makes the fight against infringers easier. Also, such registration is very important in valuing a copyrighted or related right object, as it allows ascertaining the evaluated object by defining that it is complete. Valuation of copyright is necessary where the copyrighted or related right objects are used in commerce. Commercial use of copyrighted or related right objects may be not only in the form of a paid transfer of property rights, the right holder may also use copyrighted or related right objects as:
- security for the initial and subsequent issue of shares
- contribution to the charter capital of a company, which allows to increase the size of the charter capital considerably;
- copyrighted or related right objects may be credited to the balance sheet of a company and subsequently depreciated, may be pledged in order to borrow funds.
If instructed by our clients, we register and deposit copyrighted objects in Kazakhstan, the Russian Federation, and the United States. We also provide legal advice in relation to such registration.
The scope of our services in the area of copyright and related rights includes:
- Drafting and filing of applications for registration of objects of copyright and related rights;
- Legal support in drafting copyright agreements and assignment agreements in relation to property rights;
- Legal advice related to copyright and related rights;
- Issue of memorandum, legal opinions in relation to copyright and related rights;
- Representing clients in relation to protection of copyright and related rights.