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 41