IP/C/W/628  
 
25 April 2017  
(17-2240) Page: 1/4 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English  
 
REVIEW OF LEGISLATIO N 
RESPONSES FROM KAZAK HSTAN TO QUESTIONS P OSED BY THE UNITED STATES OF AME RICA  
By means of a communication  from the delegation of Kazakhstan, dated 18 April  2017, the 
Secretariat has received the following responses to questions posed by the United States  as 
circulated in document IP/C/W/62 7. 
 
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1. In Article 2(39) of the Copyright Law, "work(s) of amateur and folk arts " are 
defined as "a work including peculiar elements of traditional art heritage (folk fairy 
tales, fol k poetry, folk songs, instrumental folk music, folk dances and plays, artistic 
forms of folk traditions, etc.). " Are these works protected works under Article 6 
("Copyrighted Items & General Provisions ") or are they intended to be works that are 
excluded u nder Article 8(3) as "works of folklore "? If the latter, then are works of 
amateur and folk arts protected under other laws and, if so, how are they protected?  
 
According to paragraph 1022  of the Report of the  Working Party  on the Accession of Kazakhstan1 
(WPR) "works of amateur and folk arts ", as defined by sub -paragraph 39 of Article 2 of the 
Copyright Law, are not protected by copyrigh t or other laws of Kazakhstan. To be a "work of 
amateur and folk art " excluded from copyright protection under paragraph 3 of Article 8 of the 
Copyright Law, this work does not have to have  an author (s), but instead has to be  created by a 
community.  Anonymous works and works created under a pseudonym ha ve an author; only works 
created by a community are not protected under sub-paragraph 39 of Article 2 and paragraph 3 of 
Article 8 of the Copyright Law.  Derivative works using an underlying work of amateur or folk arts, 
like derivative works using other public domain works  are protected as independent works under 
paragraph 3 of Article 7 of the Copyright Law.  For example, a musical composer who created an 
arrangement of a work of amateur and folk art will have that arrangement protected by 
paragraphs 1(5) of and 3(1) of Article 7 under the Copyright Law.  Likewise, sound reco rdings, 
audio -visual works and other fixations of works covered by sub -paragraph 39 of Article 2 w ill be 
protected under the Copyright Law. Performers/producers/broadcasting organizations ha ve the 
rights enumerated in Chapter III "Related Rights " of the Co pyright Law to fixations of works of 
amateur and folk arts.  Works that c an arguably fall under the folklore definition of sub -paragraph 
39 of Article 2 of the Copyright Law, but which ar e protected as copyrighted works in the country 
of origin, w ill be protected as copyrighted works in Kazakhstan.  
 
2. Regarding Article 19 of the Copyright Law in relation to definitions of certain 
words and Article  19's relationship with the three -step test articulated in the Berne 
Convention and other treaties (e.g.,  Artic le 13 of TRIPS provides: "Members shall 
confine limitations and exceptions to exclusive rights to certain special cases which do 
not conflict with a normal exploitation of the work and do not unreasonably prejudice 
the legitimate interests of the rights ho lder.") 
 
a. What is the meaning of "cite" and "citation " in Article 19(1)? Do you intend 
"cite" and "citation " to mean "quote " and "quotation "? If so, why don't you use 
"quote " and "quotation "? If not, then what is the difference between "cite" and 
                                                
1 WTO Document WT/ACC/KAZ/93.  IP/C/W/628  
 
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  "quote " and "citation " and "quotation "? Finally, how does this language comply 
with the three -step test in the Berne Convention?    
 
In paragraph 1024  of the WPR Kazakhstan stated that t he terms "cite" and "citation " in 
paragraph  1(1) of Article 19  of the Copyright L aw mean s "quote " and "quotation " as used in 
Article  10(1) of the Berne Convention.  Indeed, "cite" and "citation " was used to mean "quote " and 
"quotation ". This is only the issue of translation since there is no difference between "cite" and 
"quote " and "citation " and "quotation " in Russian language.  
 
b. Additionally, Article 19(1)(1) refers to use of the work for "information 
purposes, " which could be interpreted as providing for potentially unlimited use 
of a work without authorization. What is meant by use f or "information 
purposes "? What is meant by "in the size that is justified for the citation 
purposes "?   
In paragraph 1024 of the WPR Kazakhstan stated that the term "information purposes " in 
paragraph 1(3) of Article  41 of the Copyright Law  means "to repo rt events that are expected to 
occur in the near future " and "to report recent historical events ". "Size justified for the citation 
purposes " is limited to the minimum size necessary for quotation for information purposes. 
Necessary condition for quotation  is compliance with author’s non -proprietary rights.  
 
Copyright Law (Article 19)  Bern Convention (Article 10)  
It shall be allowed, without consent of the 
author or other owner of the right and without 
paying out royalties, but with compulsory 
indication of the author’s name, whose work is 
being used, and of the borrowing resource:   
 
 
1) to cite  in the original and translations for 
scientific, research, polemic, critical and 
information purposes  from the legally published 
works in the size that is justifi ed for the citation  
purposes , including reproduction of extracts 
from newspaper and magazine articles in the 
form of periodical reviews;  Article 10(1)  It shall be permissible to make 
quotations  from a work which has already been 
lawfully made available to the public, provided 
that their making is compatible with fair 
practice, and their extent does not exceed that 
justified by the purpose , including quotations 
from newspaper articles and periodicals in the 
form of press summaries.  
 
 
c. Article 19(1)(2) refers  to the use of works "for the purpose of illustration in 
periodicals, in radio - and TV programs, in audio - and video -recordings of 
training nature. " What is meant by "training nature "? Is it the same as 
"teaching, " and if not, what are the differences betw een the two? What is 
meant by "in the volume justified for this purpose? " Would this provision apply 
to training programs created or offered by for -profit or commercial entities? 
The language used would seem to indicate as such.  
In paragraph 1024 of the WP R Kazakhstan stated that the term "training nature " in 
paragraph  1(2) of Article  19 of the Copyright Law meant "teaching " as used in Article  10(2) of the 
Berne  Convention. Example of illustration of "training nature " can be a quotation in a schoolbook 
with the purpose to explain certain rule. "In the volume justified for this purpose " in this case will 
be the volume necessary to understand and learn the rule. Use of this exclusion is allowed as long 
as it is compatible with the fair practice in the meaning of Article 10 of the Bern convention. 
Necessary condition for quotation is compliance with author’s non -proprietary rights.  
 IP/C/W/628  
 
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  Copyright Law (Article 19)  Bern Convention (Article 10)  
It shall be allowed, without consent of the 
author or other owner of the right and without 
paying out royalties, but with compulsory 
indication of the author’s name, whose work is 
being used, and of the borrowing resource:   
2) to use legally published works and extracts 
thereof for the purpose of illustration in 
periodicals, i n radio - and TV programs, in 
audio - and video -recordings of training nature, 
in the volume justified for this purpose ; 
 
 (2) It shall be a matter for legislation in the 
countries of the Union, and for special 
agreements existing or to be concluded 
between them, to permit the utilization, to the 
extent justified by the purpose, of literary or 
artistic works by way of illustration in 
publications, broadcasts or sound or visual 
recordings for teaching,  provided such 
utilization is compatible with fair practice . 
 
3. In relation to Article 41 of the Copyright Law we have questions of a similar nature 
as the questions posed regarding Article 19 above.   
 
a. Article 41 states that performances, staging, and transmissions of on -air or 
cable broadcasting organizations and their recordings, including to reproduce 
phonograms is allowed for a series of purposes, such as "exclusively for 
training and scientific research purposes. "  What is the definition of 
"exclusively " in this context? As requested above, is "training " the same as 
"teaching "? If not, what are the differences between the two and does training 
also encompass commercial activities? What is meant by "scientific research 
purposes "? 
In paragraph 1026 of the WPR the representative of Kazakhstan confirmed that the  term 
"exclusively " in paragraph 1(2) of Article  41 of the Copyright Law meant "solely " as used in 
Article  15(1)(d) of the Rome  Convention.  The term "training " has the same as "teaching " and does 
not encompass commercial activities. "Scientific research pu rposes " mean s purposes of scientific 
analysis.  
 
Copyright Law (Article 41)  Rome Convention (Article 15)  
     It shall be allowed, without consent of the 
performer, producer of a phonogram, of wire or 
wireless  broadcasting organization and without 
paying o ut royalties to use performance, 
staging, transmissions of wire or wireless  
broadcasting organization and their recordings 
as well as to reproduce phonograms for the 
following purposes:  
 1. Any Contracting State may, in its domestic 
laws and regulations, p rovide for exceptions to 
the protection guaranteed by this Convention as 
regards:  
 2) exclusively for training and scientific 
research purposes;  
 (a) private use;  
(d) use solely for the purposes of teaching or 
scientific research.  
 
b. Article 41 also states  that performances, staging, and transmissions of on -air or 
cable broadcasting organizations and their recordings, including to reproduce 
phonograms shall be allowed "for citation small extracts from a performance 
staging, phonogram, transmissions of on -air or cable broadcasting organization 
provided, that such citation is made for information purposes. " What is meant 
by "for information purposes, " which appears quite broad?  IP/C/W/628  
 
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  As it was mentioned above in paragraph 1024 of the WPR Kazakhstan stated that the term 
"information purposes " in paragraph 1(3) of Article  41 of the Copyright Law  means "to report 
events that are expected to occur in the near future " and "to report recent historical events ". 
 
Copyright Law (Article 41)  Rome Convention (Article 15)  
3) f or citation small extracts  from a 
performance, staging, phonogram, 
transmissions of wire and wireless  broadcasting 
organization provided, that such citation is 
made for information purposes . At this, any use 
by wire and wireless  broadcasting organization 
of copies of phonograms that are published for 
commercial purposes for broadcasting, 
communicating for general information via wire 
or communication to the general information 
shall be possible subject to complying with the 
provisions of Article 39 of this Law.  (b) use of short excerpts  in connection with the 
reporting of current events;  
 
 
 
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