World Monitor Mag, Industrial Overview WM_November_2018_WEB_Version | Page 43
EXPERT OPINION
Inappropriate advertising. In Kazakhstan,
inappropriate advertising is prohibited.
The following types of advertising are
considered to be inappropriate advertis-
ing: unfair, unreliable, unethical, false and
hidden advertising. Thus, according to
court practice, an advertisement in which
the statement: “Media-TV is the best net-
work in Rudny” is found to be unfair, as it
contains a comparison of the advertised
services of Media TV LLP with the services
of other entities; it denigrates the business
reputation of other entities 3 . The advertis-
ing poster (see fig. 1 below) with images of
the folk musician Kurmangazy Sagyrbaiuly
and the poet A. S. Pushkin is recognized
as unethical advertising. Moreover, the
court obliged the advertising agency that
made the poster to make a public apol-
ogy by publishing in/speaking on one of
the republican media and compensate the
claimants moral damage in the amount of
KZT 34 million 4 .
Copyrights. Copyright items are often
used in advertising. It may be fragments
of famous works of art. Here it must
be remembered that advertising, which
denigrates items of art, culture, historical
monuments that are national or world
heritage may be recognized by the court
as unethical. At the same time, in such
cases, the question arises of the legal-
ity of the use of copyright items. For
example, the world-famous “Portrait of
Mrs. Lisa Giaconda. The Mona Lisa" by
the artist Leonardo da Vinci was used in
advertising hair care products with an ad-
vertising slogan "Pantene Time Renewal.
Restores age-damaged hair." (see fig.1).
From a legal point of view, when using a
copyright item, namely, a painting by Leon-
ardo da Vinci, you should answer the ques-
tion about the legality of such use. The
following principles of copyright protection
apply in Kazakhstan:
1) the principle of automatic protection on
the basis of the Berne Convention 5 - copy-
right on a work (literary or artistic) arises
Conclusion - the copyright (exclusive)
of the artist in advertising is not infringed.
Liability. The current legislation estab-
lishes the maximum penalty for inappro-
priate advertising in the amount of KZT
2,500,000; some articles of the Code of
Administrative Offenses 8 also provides for
(as a punishment) suspending the release
of the media for up to 3 months. Moreover,
advertising consumers have the opportu-
nity to complain about inappropriate adver-
tising on the website of the RK Ministry of
Information and Communications 9 .
Fig. 1. Source: https://kulturologia.ru/
blogs/110411/14305/
by virtue of the fact of its creation (that is,
items of copyright are not subject to man-
datory registration).
2) the term of protection - copyright is
valid for the entire life of the author and
for seventy years after his/ her death 6 .
3) the principle of national regime - any
disputes are subject to consideration un-
der the laws of the country in whose terri-
tory the copyright is used.
So, using the example of a painting by
Leonardo da Vinci, if such advertisement
were distributed in Kazakhstan, the fol-
lowing questions should be analyzed to de-
termine the legality of using the copyright
item:
1) The country of origin of the artist is
Italy. Kazakhstan and Italy are member
countries of the Berne Convention 7 , which
means that the principles of protection
also apply to the painting by Leonardo da
Vinci.
2) The date of death of the artist (May 2,
1519) + 70 years (the term of protection
under the Kazakhstan law) = 1589 - from
this year the work is freely available. Only
the non-property rights of the author must
be respected.
In case of copyright infringement, dis-
tribution of information contrary to the
laws of the Republic of Kazakhstan, there
is a basis for suspending the release of
an Internet resource or distribution of its
products for up to three months. So, with
regard to foreign Internet resources, if an
Internet resource has not eliminated copy-
right infringement, distribution of informa-
tion that is contrary to the law, there is a
reason to discontinue issuing a foreign
Internet resource or distributing its prod-
ucts as provided for by Chapter 48 of the
Civil Procedure Code 10 . Moreover, the right
holders and their heirs in the case of illegal
use of copyright items have the right to file
a claim with the court seeking discontinua-
tion of the infringement and/or compensa-
tion for the damage caused.
1
RK Law dated December 19, 2003 No. 508-II
“On Advertising”.
2
RK Law dated June 10, 1996 No. 6-I “On
Copyright and Related Rights”, p. 4, Art. 32.
3
The decision of the Specialized Interdistrict
Economic Court of Kostanay oblast of January
22, 2018 in case No. 3971-17-00-2 / 4938.
4
Order of the Court of Cassation of the Almaty
City Court of June 11, 2015 in case No. 2K-
1172/2015.
5
The Berne Convention for the Protection of
Literary and Artistic Works (Paris Act, WIPO,
July 24, 1971). Kazakhstan acceded to the Bern
Convention by the Law of the Republic of Ka-
zakhstan dated November 10, 1998 No. 297-1.
6
RK Law dated June 10, 1996 No. 6-I “On
Copyright and Related Rights”, paragraph 1 of
Article 28.
7
http://www.wipo.int/treaties/en/ShowResults.
jsp?treaty_id=15.
8
The RK Code on Administrative Offenses of
July 5, 2014 No. 235-V, Art. 157.
9
http://mic.gov.kz/ru/complain.
10
RK Code dated October 31, 2015 No. 377-V
“Civil Procedure Code of the Republic of Ka-
zakhstan”
supported by EUROBAK
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