PROTECTION OF COPYRIGHT AND RELATED RIGHTS IN KYRGYZSTAN

Janyl Abdyldabek Kyzy
Kyrgyzpatent Deputy Director

Copyright have passed complicated historic way until it is gained the present existing features - broad penetration to many spheres of human activity. Since the XV century with the appearance of typography in Europe relations “author - user” have emerged. As far as the meaning “copyright” meant “the right for copy” first legal relations between author and user is regulated the matters regarding the making of copies of works.

In certain European countries there were the laws connected with typography and copyright: ordonnances of Lewis XVI Th 1777, decrees of Constituent Assembly 1791, 1793; the Law of Massachusetts State dated March 17, 1789 and first Federal Law 1790 on protection of books, maps, and charts; decree issued in Saxon dated February 27, 1686 providing to authors protection from illegal use of their works. Such laws, decrees and codes were issued in Russia, Denmark, Norway, Spain and Italy. The first law on Copyright in Russia was adopted in 1830. In 1886 with joint efforts of certain countries, multilateral agreement was concluded - Berne Convention for the Protection of Literary and Artistic Works. And in 1952 the second (basic) International Convention - World Copyright Convention was adopted.

With the development of science, technics and information technologies in the sphere of protection new copyright subject matters was introduced such as photographic, audio visual, radio works computer programs, database and so on.

Copyright protection within the Kyrgyz Republic has assumed the status of the state management since 1973, from the moment of creation the Kyrgyz branch of VAAP. Soviet copyright legislation recognized the authors as the right owner of their works. All operations concerning the cession of rights, however, as well as the additional rights have been controlled by VAAP. Moral rights of authors were considered as an inalienable and unlimited as well as under the State protection.

Protection that have been provided during the soviet period was restricted. Despite of well developed system in respect of authors remuneration payments for the use of works, many authors economic rights belong to state. For instance, soviet authors was not able to publish their works abroad without state permission, but if the author by way of some actions published the work abroad, that author was subject to strong abstraction.

Economic rights on audio visual works and all related rights belong only to the State. With finding of independence the strategy for the development of our country is oriented on the creation of democratic, legal state. In the frame of this conception during the recent years there are number of laws and normative acts that have been adopted in the field of copyright and related rights. In accordance with the requirements of international law harmonization of national legislation have been made. In this connection Laws of the Kyrgyz Republic “On Copyright and Related Rights” and “On Legal Protection of Computer Programs” was adopted. Taking into account that in 1997 Civil Code entered into the force, we can confidently say that first stage on the development of national jurisdiction in the sphere of copyright and related rights is completed. The next stage is joining to the International Conventions and Treaties that our authors can get the international protection of their rights. The question of ratification of the Berne Convention for the Protection of Literary and Artistic Works and accession to the WIPO Copyright Treaty is settled.

The point that nowadays called ‘show-business” during the soviet times was controlled completely by the State, for instance cinematographic companies that produced films, broadcasting organizations produced telefims and broadcasts, recording firm “Melody” produced recordings with musical works as well as the “Gosconcert” dealt with the organization of tours for artists are was all the state enterprises.

In the field of copyright and related rights, as well as like in other spheres of life infinitely operated the state monopoly. It was allowable to use authors works on the audio carriers without their permission, as well as on the television and radio - and without authors remuneration. Royalties are been payable only for public performances, strictly in the limits of rates established by the government. Matters concerning the related rights sphere was not regulated legislatively. Adoption of Law of the Kyrgyz Republic “On Copyright and Related Rights” created legal base for the formation of the civilized market in the sphere of use copyright and related rights subject matters, and in particular in the field of show business.

One complicated and difficult problem is the destruction of old stereotypes in the said legal relations. The users of copyright and related rights subject matters still cannot to realize that came different times, and they are not familiar with the new legislative requirements. Moreover, large-scale usage of copyright and related rights subject matters without observation of legislative norms can lead to the increasing of infringements in this sphere. It can be noted that the consequence of such situation in the sphere of copyright and related rights is decreasing authors standards of living, that they cannot to get the authors remuneration related to them for the use the results of their creativity.

Conception of development of the system of copyright and related rights protection in Kyrgyzstan, in the frame of Stable Human Development requires changing not only in the foundation of the legislative-legal base and legal relations between authors and users, but also creation of new mechanisms in implementation of international and national legal requirements. Norms of copyright and related rights affected such spheres of activity as: sound and video recording of musical works, creation of musical video motional pictures, advertising films, booklets, posters, audio and video cassette, and compact disks, producer activity of artists-performers, organization of tours and concerts, holding of exhibitions, trade of copyright and related rights, copying and distribution of works on all types of carriers, image making and many other kinds of activities.

Sound recording studios, concert organizations, concert halls, producer companies, information agencies, radio, television, news papers and magazines, publishing, polygraphic, advertising firms and firms dealing with the production of video motional pictures - are united by that that they use in their activities the copyright and/or related rights subject matters, and all of them are the users of intellectual property.

Today we have sufficiently broad spectrum of legislative-legal acts, and main difficulty is to change the awareness of users and authors as well. Users, especially with regard to broadcasting organizations, producers of audio and video products and phonograms, still cannot to realize, that the rights of authors the works of which they use has to be observed, and it is necessary to obtain the permission for the use of their works and pay authors remuneration.

It is also applies to those users for which the use of musical and audio visual works is not the main type of activity, but serves the purpose of increasing the level of services rendered, such as the “background” music in cafe or restaurant, demonstration of video films on transport and so on.

Regulation “On minimum rates for the use of copyright and related rights subject matters” approved by the provision of Government of the Kyrgyz Republic dated December 17, 1998, is the concrete mechanism that regulates legal relations between user and author, assignee or organization that deals with the authors economic rights collective management.

New legal relations between authors and users in the field of copyright and related rights requires improvements not only in the legislative base but also in the mechanism on provision of protective measures and suppression of infringements in the sphere of copyright and related rights.

Fist infringements in the field of copyright took place after the creation of printing press with moving letters. Books became not very big rarity, it was available circulating and selling at the more cheaper price. It became the subject of trade and net profit to its publishers. The same situation was with the graphic works. At that time then first ‘book pirates” appeared, that felt material advantage from illegal reprinting. This problem remain actual nowadays when it is become much more simpler to get access to duplicating machines with high operating speed and quality to make the copies.

Technology of information exchange made a big step forward and information, works, images and sounds are duplicating and distributing in the world with very high speed. Crudely increased the number of people that use them, i.e. potential users which is naturally affected the existing system of human rights - the rights on authorship, opening a new broad possibility of “intellectual piracy”.

Accession to the International Conventions and treaties gives to our authors possibility to get the international protection of their rights. Auspicious possibilities are opened now for the development of all copyright and related rights protection system, to involve more broader circle of interested persons not only within the state, but in the whole world as well.

To achieve this goal, first of all it was necessary to have institutional security by the way of reorganization the state system of management. The functions of institutional mechanism in our country is carries out the State Agency of Intellectual Property under the Government of the Kyrgyz Republic (Kyrgyzpatent). One of the basic tasks for the optimization of copyright and related rights protection is the development of authors works calculation system, in particular, on appropriate organizational and technical level should be raised the functional registration of authors and their works that allow timely discover all types of works used for the collection, and distribution of authors remuneration. To serve this goal at Kyrgyzpatent is creates the database - list of national authors and their works. Creation of the management system of this database allow timely and operative exchange with the international lists of authors and works, such as the list of authors CAE and works WWL.

The next important task in the development of copyright and related rights protection is the execution by Kyrgyzpatent the functions of authors economic rights collective management department for the purpose of provision authors economic rights protection, as well as performers, phonogram producers and other copyright and related rights owners.

For the prevention of authors rights infringements in course of utilization of copyright and related rights subject matters a big attention pays to the development of licensing system. The licenses itself has the features of agreement between the Kyrgyzpatent and user for use of copyright and related rights subject matters, as well as for the public performance of works on concerts, show, authors evenings and other such kind of arrangements.

Accession to the World Trade Organization (WTO) impose upon the Kyrgyzpatent big tasks on the implementation of WTO requirements in general and in respect of trade related aspects of rights on intellectual property, in particular, according to the TRIPS Agreement. In this connection on the new level is raised the matters on suppression of infringements in the field of intellectual property, since WTO makes high requirements on the regulation of this matter.