This article will examine some cases from the jurisprudence of Kazakhstan relating to intellectual property in the field of computer programs.
Before we begin to analyze civil cases, it is necessary to determine what is a computer program, according to the current legislation of the Republic of Kazakhstan. In accordance with par. 40 Article 2 of the Law On Copyright and Related Rights, a computer program is a set of commands expressed in words, diagrams, or in any other form of expression which, when recorded on a machine-readable tangible medium, ensures that a computer performs or achieves a certain task or result. This definition also includes the preparatory materials that will later become a program.
The background to the first of the cases discussed in this article is as follows:
The individual entrepreneur states that he produced a number of products for the company, namely a unique design and layout of the site, as well as backend applications to run the site on different platforms, with the development of new sections. According to Plaintiff, the defendant company fraudulently took possession of the results of his intellectual activity without paying a fee.
It should also be noted that they have not concluded a written agreement because of the high level of trust between the parties. For this reason, the court engaged an expert, one of the purposes of which was to determine whether the current version of the Respondent's site had the same elements as those provided by Plaintiff.
The expert opinion showed that the components of the Respondent's site are constantly changing and supplemented, and no fragments were found in the current version, which would indicate that the Respondent company used the results of the Claimant's intellectual activity. Moreover, according to the results of the expert's research, the disputed website differs in programming language from that claimed by Plaintiff.
It is interesting to note that the expert was also tasked with determining how reliable the versions of websites saved through web.archive.org are, to which the expert had not given an unambiguous answer due to the inaccessibility of this resource on the territory of Kazakhstan at the time of the case.
As a result of consideration of this case, the court concluded that the Plaintiff's claims are not justified. In its decision, the court, among other things, referred to the fact that the site in question does not belong to the objects of copyright in accordance with the laws of the Republic of Kazakhstan.
In summary, we can come to the following conclusions:
- When planning to create a work for the benefit of another person, it is necessary to draw up a commissioning agreement, establishing the exact characteristics of the work and the amount of remuneration to the author.
- To confirm the use of intellectual property on Internet resources by an unauthorized party, it is recommended to use sources whose authenticity can be confirmed. One way to do this is to notarize screenshots of the website where the results of intellectual activity are unlawfully used. This will aid in avoiding the possibility that evidence of use will be deleted by the other party.
The following dispute arose because the defendant company used a domain name similar to the name of a computer program. Data on this program was entered into the State Register of Copyright Protected Objects, as evidenced by the relevant certificate. (Hereinafter referred to as the «Register»).
The Register is an information system that contains information about copyrighted objects, entered based on applications from authors.
The court also engaged an expert, who concluded that the verbal element of the name of the computer program, coinciding with the domain name of the Respondent company, is the result of creative activity and protected part of the object of copyright. The court concluded that in accordance with the law:
- A domain name is not an intellectual property object.
- The Respondent company is not its owner since the period of use of the domain name is limited to the period of its registration in the Kazakhstan segment of the Internet.
Based on the above circumstances, the Court upheld the Plaintiff's claim since the Respondent company's use of the domain name violated the Plaintiff's right to use the name of the computer program, which is the object of copyright.
Thus, before registering a domain name, searching for similar names, domain names, and trademarks of other parties engaged in similar activities is recommended. This step will reduce the likelihood of litigation in the future.
Considering the judicial practice of Kazakhstan in the field of copyright for computer programs, we can note two problematic factors. Firstly, in accordance with par. 2 of Article 616 of the Tax Code of the Republic of Kazakhstan - plaintiffs in cases arising from copyright are exempt from payment of court fees when filing a lawsuit. This leads to the fact that plaintiffs, regardless of the validity of their claims, are often ready to file many lawsuits with an overestimated amount of compensation for violations of their copyrights. In practice, judicial authorities often reduce the amounts of payments in accordance with the criteria of reasonableness and fairness when considering this category of disputes.
On the other hand, there are court cases in which there are persons who abuse their right to register in the State Register of Copyright Protected Objects. These legal proceedings have arisen due to the fact that individuals have successfully applied to the Register objects in respect of which they have no intellectual property rights. This is because under the Law of the Republic of Kazakhstan, On Bodies of Justice, the Ministry of Justice is not authorized to carry out expert examinations for plagiarism and copyright infringement when receiving applications to be included in the Register. This circumstance leads to unfair competition and attempts to appropriate the results of intellectual activity. It is possible to prohibit such actions of the infringing party only through the court when the damage to the rightful owner and his reputation has already been caused.
In conclusion, we can say that despite the small number of court disputes related to copyright for computer programs and, consequently, the lack of uniformity in adjudication, a positive trend can be noted. This trend is reflected in the use of experts and the involvement of third parties directly related to the subject matter of the dispute, which allows for the expectation that the interests of intellectual property rights subjects will be adequately protected in future litigation in this area.
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.
