Disputes related to Internet resources
An Internet resource as an object of civil law relations can relate not only to mass media, but also to the result of intellectual creative activity.
According to subparagraph 4) of Article 1 of the Law "On Mass Media", a mass media is a periodical, television, radio channel, documentary film, audiovisual recording and other form of periodic or continuous public dissemination of mass information, including Internet resources.
Subparagraph 14-1) of Article 2 of the Law "On Copyright and Related Rights" and subparagraph 20) of Article 1 of the Law "On Informatization" provides that an Internet resource is an electronic information resource, the technology of its management and (or) use, functioning in an open information and communication network, as well as an organizational structure providing information interaction.
According to subparagraph 1) of paragraph 1 of Article 961 of the Civil Code, the objects of intellectual property rights include: the results of intellectual creative activity. An Internet resource as an object of civil law relations can relate not only to a mass media, but also to the result of intellectual creative activity, if the electronic information resource was created by the author's work with the application and use of technologies operating in an open information and communication network and is essentially an organizational structure providing information interaction.
Ownership of an Internet resource is subject to protection under the rules of civil law.
The Internet resource is an object of civil law relations and it includes the provisions of the Civil Code governing the right of ownership as a property right and benefit.
An online resource may be freely alienated or transferred from one person to another by way of universal succession or in any other way, including purchase and sale, donation, menu, and others.
By the decision of the Specialized Interdistrict Economic Court of Almaty dated October 11, 2010, the ownership of the Internet resource "Center of Gravity" was recognized for New Line Media LLP ("New Line Media") on the basis of an agreement dated March 16, 2007, concluded between E.T. Isabaev and D.A. Zimin..
Also, the court ordered Zimin D.A., Turekhanov V.B. to return to New Line Media LLP (New Line Media) the full opportunity to own, use and dispose of the Center of Gravity Internet resource, including by re-registering the domain name "ct. kz" to New Line Media LLP ("New Line Media"), transfer to New Line Media LLP ("New Line Media") all the management code of the Internet resource "Center of Gravity", the database and the implementation of all other necessary actions; destroy all copies of the Internet resource "Center of Gravity", including databases and keys.
I forbade Zimin D.A., Turekhanov V.B. to store, clone and use copies of the Internet resource "Center of Gravity" without the consent of New Line Media LLP ("New Line Media").
In the decision, the court stated that E.T. Isabaev and D.A. Zimin, pursuant to the agreement dated March 16, 2007, jointly established New Line Media LLP with equal shares in the authorized capital. In addition, they agreed to transfer the exclusive rights to the domain name."ct.kz " into the ownership of the aforementioned partnership since April 1, 2007. Contracts with third parties for the placement of advertising materials on the websites of "www. сt.kz " and "bb.ct.kz " to conclude on behalf of the LLP, as well as register ownership of the named domains, trademarks "Center of Gravity" for the LLP "New Line Media" ("New Line Media"). On April 6, 2007, an application for registration of the trademark "Center of Gravity" in pictorial, verbal and literal meanings was filed at the LLP. Such registration was carried out on November 17, 2008.
New Line Media LLP (New Line Media) since the moment of registration, he has been active in the field of using and selling advertising opportunities and advertising space in the media and on the Internet directly as the owner of the Internet resource "Center of Gravity" with the domain name "ct.kz ", and as the rightholder of the trademark "Center of Gravity" concluded contracts with third parties, openly owned, used and disposed of the information use the resource as your own, using it for commercial activities and income generation, It paid for domain name registration services, hosted two servers in the Kazakhtelecom Joint Stock Company, and maintained staff to ensure the website's operability.
The present decision, the appellate and cassation judicial boards of the Almaty City Court have left unchanged.
If the owner of an Internet resource is an individual and a lawsuit is filed against him, then such disputes are subject to consideration in courts of general jurisdiction.
Thus, by the ruling of the specialized interdistrict economic court for the East Kazakhstan region dated April 18, 2014, the lawsuit of the State Institution "Office of the Akim of Aktobe" against the Institution "Kazakhstan Network Information Center" (KazNIC), Balov Evgeny Alekseevich, was returned to cancel the domain registration. www.akimataktobe .kz, prohibiting the use of the word akimat in the domain name, since one of the defendants, Evgeny Alekseevich Balov, is an individual, and therefore the statement of claim is beyond the jurisdiction of the specialized interdistrict economic court., It should be filed in the Ust-Kamenogorsk City Court.
The protection of property and non-property rights related to the ownership and use of an Internet resource is carried out according to the general rules of Civil Procedure legislation.
Violation of copyright or related rights provided for by law is subject to liability in accordance with the laws of the Republic of Kazakhstan. The protection of copyright and related rights is carried out by the court by:
1) recognition of rights;
2) restoration of the situation that existed before the violation of the right;
3) suppression of actions violating the law or creating a threat of its violation;
4) compensation for losses, including lost profits;
5) recovery of income received by the infringer as a result of violation of copyright and (or) related rights;
6) payment of compensation in the amount of twenty minimum wages up to fifty thousand minimum wages established by the legislation of the Republic of Kazakhstan. The amount of compensation is determined by the court instead of compensation for losses or recovery of income;
7) taking other measures provided for by legislative acts related to the protection of their rights. When accepting claims for the protection of copyright and related rights in respect of copyrighted Internet resources created, taking into account the stated requirements, the courts are required to require plaintiffs to provide evidence confirming authorship and ownership of the Internet resource, violations by the defendant of the rights and legitimate interests of the applicant, specifying the requirements indicating the method of protection of the violated right.
Claims for damages, recovery of income and compensation are property-based and therefore subject to payment of state duty in accordance with Article 102 of the CPC.
During the preparation of the case for trial, the court has the right to demand from the defendant documents confirming the existence and legality of actions to use the Internet resource, including the ownership of the disputed resource.
As a measure to secure a claim, before considering the case, the judge has the right to issue a ruling prohibiting the defendant from using an Internet resource in respect of which there is a legal dispute.
By the ruling of the Specialized Interdistrict Economic Court of Almaty dated April 8, 2010, the judge, having considered the petition of NEW LINE MEDIA LLP (New Line Media) in order to secure the claim:
suspended the use, registration, and re-registration of the domain "ct.kz " Zimin Dmitry Anatolyevich and others;
I forbade Dmitry Anatolyevich Zimin and others to clone the domain "ct.kz»;
The ruling for execution has been sent to the Court Administrator for the East Kazakhstan region. Although, the court has designated the KazNIC Institution, which is the support manager for the top-level domain name KZ in the Republic of Kazakhstan, as the authorized person to implement measures to secure the claim.
It seems correct and correct to send such definitions on the prohibition of the operation and use of an Internet resource directly to the authorized organization for information support of the Internet resource, bypassing the state body for the execution of judicial acts.
A claim to restore the violated rights of third parties may be brought against the author of the Internet resource and its owner.
According to subparagraph 21) of Article 1 of the Law "On Informatization", the owner of an Internet resource is a subject that fully exercises the rights to own, use and dispose of an Internet resource.
Internet resources are often used as a means to disseminate mass media.
The owner of the Internet resource is obliged to respect the rights to the intellectual property rights used, including copyrights, related and other intellectual property rights.
The dissemination of untrue information discrediting the honor and dignity of a citizen or organization (state body, public, creative, scientific, religious or other association of citizens and legal entities), the impact of the owner of the Internet resource on the court, entail liability provided for by the legislative acts of the Republic of Kazakhstan.
In claims for the protection of honor and dignity, as well as for the protection of copyright, along with the guilty person who violated the rights of third parties, the owner of the Internet resource may also be brought to civil liability, except in cases provided for in article 26 of the Law "On Mass Media".
If the author of the information distributed on the Internet resource has not been identified, then a claim for damages may be filed against the owner of the Internet resource, who did not ensure its proper use, allowing for the possibility of posting unsubstantiated data.
For violation of legal requirements, the owner or the author of the Internet resource may be brought to civil liability.
The owner or author of the Internet resource bears the responsibility established by the legislative acts of the Republic of Kazakhstan for the dissemination of messages and materials containing propaganda or agitation of violent change of the constitutional order, violation of the integrity of the Republic of Kazakhstan, undermining the security of the state, war, social, racial, national, religious, class and tribal superiority, cult of cruelty, violence and pornography, regardless of from the source of their receipt.
The owner of an Internet resource is recognized as the person who created and is the author of the corresponding Internet resource, unless reliable and complete evidence of the alienation of the Internet resource to another person is established at a court hearing.
The author of an Internet resource may be held liable under the laws of the Republic of Kazakhstan for violating the rights and interests of other persons, society and the state, regardless of whether he has ownership rights to the Internet resource, if he provides the court with evidence of his posting illegal and unreliable information, messages and materials.
The owner or the author of the Internet resource may be held liable for the distribution of prohibited advertising.
The owner or author of the Internet resource is also responsible, as established by the legislative acts of the Republic of Kazakhstan, for distributing messages and materials containing advertisements for certain types of products.:
1) ethyl alcohol and alcoholic products;
2) breast milk substitutes;
3) goods (works, services) subject to mandatory certification that have not passed it in the Republic of Kazakhstan;
4) tobacco and tobacco products;
5) in the form of various events, including prize draws, lotteries, aimed at stimulating demand and interest in alcoholic beverages, tobacco and tobacco products;
6) the activities of the financial (investment) pyramid.
Also, advertising on an Internet resource should not be used to promote or agitate violent changes to the constitutional order, violation of the integrity of the Republic of Kazakhstan, undermining the security of the state, inciting social, racial, national, religious, class and clan discord, the cult of cruelty and violence, pornography, as well as the dissemination of information constituting state secrets of the Republic of Kazakhstan and others. legally protected secrets.
To cause panic in society, to incite individuals to aggression, as well as to other illegal actions (inaction).
When the courts identify such facts of illegal advertising, it is necessary to consider sending private definitions to the authorized bodies in order to bring the owner of the Internet resource to the responsibility established by law.
The owners or owners of Internet resources containing publicly available electronic information resources are obliged to consider applications and are obliged to provide information of interest in accordance with the procedure and on the terms determined by Law.
According to paragraphs 1 and 2 of Article 34 of the Law "On Informatization", owners or owners of information systems containing publicly available electronic information resources are required to provide information of interest to individuals and (or) legal entities upon request in accordance with the procedure and conditions established by this Law and other regulatory legal acts of the Republic of Kazakhstan.
Unjustified refusal to provide information contained in publicly available electronic information resources may be appealed to the court.
Despite the possibility of judicial appeal against the unjustified provision of information provided for by law, the ruling of the District Court No. 2 of the Kazybekbiysky district of Karaganda city dated December 24, 2013 refused to accept the statement of claim by Kachanova E.N. under Article 153 of the Civil Code as inappropriate for consideration in civil proceedings.
By the ruling of the Appellate Judicial Board for Civil and Administrative Cases of the Karaganda Regional Court dated February 20, 2014, the above-mentioned ruling of the district court on a private complaint was canceled and the case was sent for consideration on its merits with reference to article 34 of the Law "On Informatization".
Collection of arrears in payment for granted access and use of the Internet
When considering this category of cases, it should be borne in mind that the rules of the "Energy Supply" paragraph of the special part of the Civil Code apply to relations for the supply of Internet services through an attached network, unless otherwise established by law, contract, or follows from the nature of the obligation (paragraph 2 of Article 492 of the Civil Code).
In case of non-fulfillment (improper fulfillment) by the recipient of the service of the obligation to timely pay for Internet access, the service provider has the right to demand debt collection and a legal penalty (paragraph 1 of Article 295 of the Civil Code).
When concluding an agreement on the provision of Internet communication services with the owner of the premises, the alienation by the consumer of the service in accordance with the procedure established by law of the premises means the corresponding transfer of rights and obligations to pay for the services provided to the new owner, who purchased the premises with connected networks and, in case of continued use of the services provided, is obliged to pay for their consumption in accordance with the procedure established by the agreement with the old owner.
When resolving disputes in this category of cases, courts do not always require plaintiffs to provide data indicating that the defendant has rights to immovable property for which Internet communication services are provided or an agreement concluded between the parties for the provision of this service.
For example, by an absentee decision of the Almaty District Court dated October 22, 2014, Baktybaev B.A. collected debts in the amount of 11,648.32 tenge and expenses for the payment of state duty in the amount of 349 tenge in favor of Kazakhtelecom JSC. As the basis for debt collection, the decision indicates the presence of an order form dated February 7, 2009, in which the defendant expressed a desire to install a telephone and receive a subscriber number.
By another absentee decision of the Ekibastuz City Court of Pavlodar region dated February 28, 2014, debt for telecommunications services in the amount of 1,497 tenge and court costs for the payment of state duty in the amount of 149 tenge, a total of 1,646 tenge, was recovered from Elmira Altayevna Rahimzhanova in favor of Zebra Telecom LLP. In this case, the basis for debt collection is a contract for the provision of telecommunications services dated November 07, 2011.
In both cases, the courts failed to verify the existence and retention of ownership rights for the defendants to the real estate for which the services were provided. When identifying the fact of alienation, it is imperative to take this circumstance into account when calculating the amount owed.
Regulatory framework
The courts, when considering cases and materials in this category, are guided by
The Constitution of the Republic of Kazakhstan,
The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC),
The Civil Code of the Republic of Kazakhstan,
The Law of the Republic of Kazakhstan dated July 23, 1999 "On Mass Media" (hereinafter –
The Law "On Mass Media"),
The Law of the Republic of Kazakhstan dated June 10, 1996 "On Copyright and Related Rights" (hereinafter –
The Law "On Copyright and Related Rights"),
The Law of the Republic of Kazakhstan dated January 11, 2007 "On Informatization" (hereinafter – the Law "On Informatization"),
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2007 "On the application by courts of certain norms of legislation on the protection of copyright and related rights".
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