Alaeva G.T.

Ph.D., assistant professor of "Jurisprudence and International Law"

"Turan" University

Legal description of the copyright license agreement in accordance with the legislation of the Republic of Kazakhstan

Annotation. One of the most common ways to implement copyright is the transfer thereof to the contract. Among the most important sources of legal regulation of copyright contracts today is highlighted CL of the RK. However, it has only the basis for a conclusion of a copyright contracts, in general, the principle of freedom of contract allows to the owners of copyright to more fully exploit the opportunities arising from the creation of such work.

Key words: copyright contract, license agreement, intellectual property, copyright, concession, alienation.

Legislation of all countries provide the transfer of copyright under contract with the author of the work or the transfer of these rights by inheritance. The general principle is that the "moral" rights is not subject to transfer. Copyright contracts are diverse: publishing contracts, contracts about the transfer, contracts on the film adaptation and etc.

V.A. Khokhlov writes: "The name reasonably considered conditional, because, for example, on the side of the author may be heirs, who, of course, are not the authors. However, such name is justified by the logic of the genesis of any rights in this sphere, since without author authority does not arise"[1, c.195].

Modern civil law of Kazakhstan also continues to use the term "copyright agreement". In our view, this agreement may not be included in a group of contracts on disposal of exclusive rights, but it is a question of the system of agreements in the field of intellectual property, which means that it is the subject of another research.

CC RK does not contain the concept of a copyright contract. National legislation traditionally defined certain types of contracts.

For example, the Civil Code of the Kazakh SSR in 1964 gave a fairly complete definition of two types of copyright agreement - contract on transfer of work for using and license agreement. At the same time, in the science of civil law has long been an ongoing debate over the definition of the copyright contract.

At the same time there is different points of view, to the point that there was no a large need to develop a common definition of the copyright contract [2, c.259].

However, developing the concept of copyright contract is necessary. This would distinguish between copyright treaties as a civil-legal transactions and agreements on the establishment of service-related work under the employment contracts, that at least is quite important for tax purposes, as well as to determine the ratio of copyright agreements with related agreements, such as the agreement on transfer of property rights of collective management in accordance with article 44 of the CL of RK [3] and the contract of trust management of exclusive rights.

The concept of copyright contract is distinguished depending on which of the particular theory author adheres. At the present time, as already noted, there were two main theories of alienation of the author's rights.

This so-called theory of "concessions, alienation" of copyright and the theory of "permission". The theory of "concessions ,alienation" of copyright is that the author may assign the copyright to others in whole or in part. This theory is related to the countries, following the tradition of Anglo-Saxon law, where the copyright agreement is considered as "a legal act, on the basis of which, the copyright owner undertakes to cede any rights belonging to him, or allow certain actions on the use of copyrighted works; the author may by the same act completely abandon from owned to him the rights of non-property nature in respect of the work, or allow to the other contracting party to take any actions that violate these powers [4, c.10].

In CL of RK author's contract is defined as a contract, the subject of which is the transfer of property rights to the use of one or more objects of copyright. The author's contract is kind of license agreement. Thus, we see that the law considers the copyright contract as a kind of license agreement.

According to the copyright license contract, owner (holder) sends to the organization composition for changing its form, including through the transfer of a ompositio into another language or alteration, using of the method stipulated in the contract, within the agreed period by the parties the organization is obliged to pay compensation for the use, implementation by the agreement. Contracts on the transfer of the product for using, by contrast, is characterized by using of the product in the form in which it was created by the author, in terms of genre and language [5, c.9].

In the Kazakh legal doctrine copyright agreement has also undergone analysis.

R.J. Abuova believes that "the copyright contract – is a contract in which the author transfers or undertakes to transfer to the purchaser right to use his work under the limits and conditions agreed by the parties" [6, c.7].

Disadvantages of the above mentioned definition of copyright is obvious, in this definition the author writes about the transfer of the rights to the purchaser under the contract, but we know that only the proprietary (exclusive) rights can be transferred on the basis of the contract; moral rights cannot be transferred because they are inseparable from the personality of the author.

L.S. Mamikonian writes that "copyright contract – is a contract that mediates the transition of property rights of one person (the author, the copyright owner) to another (the user or purchaser) by a full (partial) assignment or temporary transfer of exclusive rights and mediating the right to use the product under the terms of non-exclusive license [7, c.10].

However, in our opinion, the copyright contract – is a contract about using the works of science, literature and art, established with a co-author, or his successors, in the result the exclusive rights to the product are made or granted for fee, the transmission of which is not prohibited by law.

This definition allows to set the essential terms of the contract, subject structure, the order of alienation of the rights to works, i.e. covers both a copyright agreement on transfer of rights and copyright agreements on granting rights on the exclusive and non-exclusive conditions, and also allows to delimit royalty contracts from other related civil liabilities.

Created a composition, the author is entitled to transfer authority for its use to another person. These powers may be exercised in different ways. The author may use the work himself, or allow others to use, or give opportunity to others to determine the order of using the product.

In accordance with paragraph 1 of Article 31 CL RK, property rights of the author, referred to in Article 16 CL RK, may be assigned in whole or in part, or may be transferred for use by the copyright contract on the transfer of exclusive rights or copyright contract on the transfer of non-exclusive rights [3].

And in this existed the biggest conceptual mistake theory of exclusive rights, cannot be non-exclusive rights, saying about only the existence of the exclusive rights is right that allow the holder of the monopoly to use legally the property rights. This license may be exclusive and non-exclusive.

Paragraph 1 of Article 31 CL RK provides that copyright contracts on the transfer of exclusive rights, permit the use of the work in a certain way and within the contractual limits only to the person to whom the rights are transferred, and gives that person the right to prohibit such use to others. The right to prohibit use of the work to others can be realized by the author of the work if the person to whom the exclusive rights are transferred does not exercise protection of this right [3].

According to paragraph 3 of Article 31 of the CL RK, copyright agreement on transfer of non-exclusive rights allows the user to use the product on an equal basis with the owner of the exclusive rights, transferred such rights, and (or) to other persons who have received permission to use this product in the same way. [3] In this case, paragraph 4 of Article 31 CL RK stipulates that the rights transferred under the copyright contract shall be deemed as non-exclusive, unless otherwise provided in the contract.

Like any civil contract, copyright contract has the essential conditions, which are included in Article 32 CL RK. At the same time copyright contract, according to the same article, should includes:

1) measures of using the work (specific rights transferred under the contract);

2) the period and the territory for which the right is transferred;

3) the amount of remuneration and (or) the procedure for determining the amount of remuneration for each mode of exploitation of the work, procedure and terms of payment and other conditions that the parties may consider essential for such contract [3].

Analysis of copyright agreement`s norms allows us to conclude about the its following signs: compensatory, right-binding and consensual, although it is possible that an agreement could be real.

One of the major conditions of the copyright contract is a condition for compensation. In accordance with CL fee is determined in the copyright contract as a percentage of revenue for the appropriate use of the product or if it is impossible to implement due to the nature of the work or the peculiarities of its use - as a lump sum in a contract or in any other way [3].

Of course, it is difficult to determine a percentage of revenue, but for the authors it is the most favorable terms than getting a flat fee, of course, should take into account the circulation of the work, the authors` interests should not be violated. Often in the contract may be given compensation based on the number of realized products.

Another payment method is taking a certain number of copies of the work by author.

Currently in Kazakhstan, there are significant differences in the legal regulation of copyright. We can say that the current legislation of RK also practically adheres to this concept, defining the copyright contract as a type of copyright license agreement. However, we have some objections.

We agree that the licensing agreements relate to the agreement on the transfer of exclusive rights, because we believe that transfer is possible with regard to the exclusive rights in whole or in part, so the term does not apply to license agreements.

According, D. Borisenko, "a license agreement shall contain an indication of the protected object, which is the subject of the contract. It is due to the fact that in compositions are often found versions, repeats and etc. So it makes sense to specify in the license agreement on the use of repeatedly published copyright works, what version of the product"[8, c.94].

License agreements, agreements on the transfer of copyright, contracts on transfer of related rights apply to contracts for the transfer of rights to use intellectual property, but are independent. The biggest difference between them is the object of these contracts, since the object of the copyright contract can only be the product, license agreements apply to other intellectual property rights, and, as we mentioned before, the scope of exclusive rights is changing. Also significant difference, in our opinion, is the fact that the copyright contract may be concluded only by the author and license agreements may be concluded on behalf of not only the authors, also copyright holders.

As the object of a copyright and related rights may be the result of the collective intellectual property (a collective outcome), definition of which is not existed in the current legislation. CL RK operates with such concepts as authorship and compilation.

Based on the analysis of Art. 10, 11, 13 CL RK, can be distinguished agreements on use of the work created as a result of co-authorship (divisible or indivisible), for example, in the case of the creation of an audiovisual work, as well as agreements on the use of certain parts of the composite work.

There are objects of copyright, the exclusive right to which can have several subjects, for example, audio-visual works.

Turnover of audiovisual works in Kazakhstan is complicated, such rules for complex objects are not provided. Therefore, as L.S. Mamikonyan writes, copyright agreements for the use of an audiovisual work are established by owners with broadcasters, distributors (distributors), cinema owners and other persons interested in the use of the work [7, c.23].

At the same time the considered objects, being as a result of the collective intellectual activity, can be combined by one legal regime, defining the features of their contractual use, but it must be regulated by the contract due to the lack of legal regulation.

The party has not performed or improperly performed obligations under an copyright contract shall compensate the losses caused to the other party, including lost profits.

Thus, the copyright license contract is a contract on the transfer of rights to use objects of intellectual property, contract about the use of works of science, literature, art, concluded with the author or his successors, in the result the exclusive rights to the product are transferred or granted for fee, transfer of which is not prohibited by the legislation of Kazakhstan.

At the same time an analysis of Article 31 of the CL RK leads to the conclusion that the law distinguishes between the copyright contract on the transfer of exclusive rights and the copyright contract on the assignment of exclusive rights.

Thus, in accordance with paragraph 1 of Article 31 of the CL RK, any assignment of property rights must be made in writing contract signed by the author and the person who has ceded the property rights. In this case it is necessary to correctly understand that these are two different contracts: copyright agreement for the transfer of exclusive rights, which is included in the type of contracts on the use of exclusive rights to intellectual property objects, copyright license agreement and the copyright contract of assignment of exclusive rights relating to the type of contracts on alienation of the exclusive rights.

List of references:

1. Khokhlov V.А. Avtorskoe pravo: zakonodatel`stvo, teoriya, praktika. 2-е изд., перераб. и доп. – М.: Городец, 2012. – 368 p.

2. Sergeyev А.P. Pravo intellectual`noi sobstvennosti v Rossiyskoi Federaciy: Учеб. – 2-е изд., перераб. и доп. – М.: ООО «ТК Велби», 2003. – 752 c.

3. Law RК dated 10 June 1996 № 6 «On copyright and allied rights» // Ведомости Парламента РК. – 1996. - № 8-9. - Ст. 237.

4. Klyk N.L. Okhrana interesov po avtorskomu dogovoru. – Красноярск: Издательство Красноярского университета, 1987. – С. 10.

5. Savel`eva I.V. Avtorskiy litsenzionniy dogovor: автореф. дисс. … к.ю.н. – М.: ГК им. М.В. Ломоносова, 1980. – 184 с.

6. Abuova R.J. Avtorskiy dogovor v grazhdanskom prave RK: дисс. …канд. юрид. наук.: 12.00.03. – Алматы, 2002. – 145 с.

7. Mamikonyan L.S. Audiovizual`nye proizvedeniya kak ob`ekty avtorskogo prava po zakonodatel`stvu RK: автореф. дисс….канд. юрид. наук.: 12.00.03 / Мамиконян Лариса Сумбатовна. – Алматы, 2007. – 26 с.

8. Borisenko D. Pravovoe regulirovanie otnosheniy mezhdu produserom I avtorami personazhei v ramkakh litsenzionnogo dogovora // Хозяйство и право. – № 1. – 2012. – С. 91–95.