Recovery of compensation as a way to protect the exclusive rights of the copyright holder

Rana Mametova

SNC (Senior Researcher)Research Institute (Scientific Research Institute), Private Law of the Caspian University

Managing Partner of IPCHOICE Law Company LLP, Candidate of Law 

Recovery of compensation  as a way to protect the exclusive rights of the copyright holder.

The exclusive rights of copyright holders to objects of intellectual property rights are the most violated, in comparison with other property rights of subjects of civil law relations.

The exclusive right, as a subjective civil right to property in the form of protected results of intellectual activity, determines the measure of possible behavior of the authorized person in relation to and regarding intellectual property.

Each person is obliged to respect the exclusivity of these rights due to their absoluteness.

In case of violation of the intellectual property rights holder's rights, he is guaranteed protection by domestic legislation and international conventions.

The protection of exclusive rights in a civil procedure is the most popular way to bring offenders to justice.

Along with the use of well-known methods of protecting civil rights such as the recovery of damages based on Article 9 of the Civil Code (Civil Code of the Republic of Kazakhstan), modern civil law considers such a method of protecting property exclusive rights as the recovery of compensation. Recovery of compensation for violation of an exclusive right is not included in the list of rights protection in Article 9 of the Civil Code, but is provided for in paragraph 6 of Article 1032 of the Civil Code and in a special regulatory act, the Law on Trademarks of the Republic of Kazakhstan.

Payment of compensation as a type of property liability of the offender for violation of the exclusive property rights of the copyright holder is an alternative way to recover damages as protection of the rights of the intellectual property owner.

     Violation or illegality of the use of objects of exclusive rights entails causing property damage to the copyright holder.

The current legislation guarantees the protection of the exclusive rights of the copyright holder to objects of intellectual rights, and, accordingly, the liability of the offender must be guaranteed.

The condition for the application of this measure of responsibility is the illegality of the behavior, while it can be applied regardless of the presence of harm (loss).

 In order to recover compensation to the copyright holder, there is no need to prove the fact of causing him losses and their amount.

The amount of compensation is determined by the court, taking into account the requirements of reasonableness and fairness.

  Payment of compensation is a measure of liability for violation of the exclusive property rights of the copyright holder to objects of intellectual rights, the implementation of which is possible only if the violation of the exclusive property rights of the copyright holder is established, regardless of the amount of damage and the fault of the infringer.