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Protection of intellectual property rights

31 march 2018

The protection of intellectual property is actively developing in the last 200-250 years, especially in the industrialized countries of the West. This is due to the fact that a number of inventions have allowed some countries, firms, corporations to become world leaders in the production of a particular product. Therefore, all developed countries invest heavily in research and development.

The main proponents of intellectual property rights are the United States of America, the countries of Europe and Japan, which account for almost 80 percent of all patents granted worldwide. In Japan, 1 million of the population of this country accounts for up to 1,000 inventions a year, in the USA it is half that. The number of patents issued in the US for the year exceeds 150 thousand.

The policy of our country at present is fundamentally oriented at supporting the domestic producer. Probably this will increase the Kazakhstan scientist's incentive to create new, progressive inventions taking into account the specifics of our market.

Unlike ordinary goods, the results of scientific research and discoveries in the form of intellectual property objects are very vulnerable. Without state protection, they can easily be assigned. The modern possibilities of information technology only increase these risks. Economic and other benefits from intellectual potential to the creator are provided only when the intellectual product is reliably protected. The value of the legal system is determined by the role that individuals play, how their interests are protected and ensured, what rights it has and what are the guarantees of these rights.

Important legislative and regulatory acts in the field of intellectual property protection have been adopted in the Republic of Kazakhstan in recent years: the Civil Code (Section 5 is fully devoted to intellectual property law), the Patent Law, the Law "On Copyright and Related Rights" and others.

In order to verify the enforcement of legislation in the field of intellectual property, inspections of competent state bodies are conducted. For inspections of economic entities using intellectual property objects, a methodology for such checks by state bodies and, most importantly, methodological recommendations defining the damage caused to the rightholder in violation of his rights has been developed. Law enforcement authorities take an active part in protecting the rights of authors.

At the same time, it is obvious that the most interested person in the protection of his rights is the author himself of the invention or the creation.

The right of authorship is a person's right to be recognized as the author of a work, invention and to demand such recognition from all other persons. With the authors and co-authors of the intellectual property object, all personal non-property and property rights are related to this object.

In case of violation of intellectual property rights, a person whose right is violated has the right to present binding or tort claims.

For the protection of these rights, their owners can apply to the court, they have the right to demand the recognition of their rights, the restoration of the situation that existed before the violation of law and the cessation of actions that violate the law or threaten its violation, compensation for damages, as well as other measures provided for by legislative acts related to the protection of their rights.

Among the objects of intellectual property rights, the Civil Code of the Republic of Kazakhstan (Article 961) distinguishes two groups: 1) the results of intellectual creative activity, 2) means of individualization of participants in civil turnover, goods, works or services.

The results of intellectual creative activity include such products of creative work as works of science, literature and art; performance, phonogram and transmission of broadcasting organizations; inventions, utility models, industrial designs; selection achievements; topology of integrated microcircuits; undisclosed information, including secrets of production (know-how) and other results of intellectual creative activity in cases provided for by the Civil Code and other legislative acts.

The means of individualization of participants in civil turnover, goods, works or services include: company names; trademarks (service marks); Appellations of origin (indication of origin) of goods; other means of individualization of participants in civil circulation, goods and services in cases provided for by the Civil Code and legislative acts of the Republic of Kazakhstan.

One of the main personal non-property rights arising from the creators of all results of intellectual creative activity is the right of authorship, all other rights of the subject of intellectual property right are derived from it - non-property and property. First and foremost, the violation of the right of authorship entails, among other things, the inability of the author to receive remuneration for his work.

The second group of objects of intellectual property - means of individualization of participants in civil turnover (works, services), personal non-property rights does not apply at all.

It is easy to see that an indispensable condition for the creation of intellectual property objects, which are the result of intellectual creative work, is the presence of a creative element, thus the element of creativity is necessary to endow the right of authorship.

Some may argue that the sign of a creative nature is inherent in the trademark. As a trademark, graphic, verbal, alphabetic, digital, volumetric and other designations or their combinations may be registered (Article 5 of the Law of the Republic of Kazakhstan "On Trademarks, Service Marks and Appellations of Origin"). These designations can undoubtedly be attributed to works of fine art, but they will be protected by copyright norms, and not by the rules for the protection of trademarks. Proceeding from the fact that the main purpose of trademarks is "distinctive (distinctive) ability", the ability to serve as a means of individualization of participants in civil circulation, the legislator does not assign to the author any rights to the trademark created by him. The author has the right of authorship only for a sketch of the trademark created by him, for a work of fine art.

Due to the inseparable connection with the person, the right of authorship is a specific right that belongs only to the actual creator of the object of intellectual property. However, the heirs of the author have the right to exercise protection of this right. In case of attribution of authorship of the deceased author by a third person, they can bring an action for his recognition. In addition, heirs must be brought to consideration of any dispute concerning the authorship of the deceased person.

For the right of authorship is inherent in inalienability and non-transferability, perpetuity of action and protection. It is the personal nature of the rights in question that determines their inalienability and non-transferability from the owner himself; it can not be transferred in part or in whole to another person, both physical and legal, on any grounds, including by contract or by inheritance. This allows us to conclude that any agreement on the denial of authorship or its transfer to another person should be recognized as invalid from the moment they were committed.

The right of authorship can not be the object of recovery, which is also a consequence of the inalienable nature of these rights. Arrest and sue can only be imposed on the author's property rights. "Indeed, if a work of art can be seized as a property or as a reward from its use, the creditor who claims seizure has no right to claim elements of a moral right allowing him to replace himself as an author ..." (R. Dumas. Literary and artistic property).

The foregoing concerns the author's personal non-property rights.

Protection of exclusive (property) rights to objects of intellectual property is carried out in the ways provided for in Article 9 of the Civil Code of the Republic of Kazakhstan. The use of the results of intellectual activity without the consent of the author, the author's instructions and payment of remuneration is a violation of the rights of the author and other rightholders.


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