IP/Q/KAZ/1, IP/Q2/KAZ/1  
IP/Q3/KAZ/1, IP/Q4/KAZ/1  
 
9 August  2017 
(17-4303) Page: 1/10 
Council for Trade -Related Aspects of  
Intellectual Property Rights  Original: English  
 
 REVIEW OF LEGISLATIO N 
 
KAZAKHSTAN1 
The present document reproduces the introductory statement made by the delegation of 
Kazakh stan, the questions put to it and the responses  given in connection with the review of 
legislation  initiated at the Council's meet ing of 7-8 June 2016 .2 The review was concluded in 
June 2017.3 
 
_______________  
 
 
1  INTRODUCTORY STATEME NT4 
1.  Kazakhstan became a Member to the WTO in November 2015, and in its obligations, 
Kazakhstan agreed to fully apply the provisions of the TRIPS Agreement  from the date of accession 
to the WTO without recourse to any transitional period. However, during the process of its 
accession to the WTO, Kazakhstan already ensured full compliance of its legislation with 
commitments undertaken in accordance with the TR IPS Agreement and the Protocol on Accession 
of Kazakhstan to the WTO.  
2.  At the present moment, Kazakhstan has submitted around 30 notifications that describe its 
intellectual property systems in detail. Kazakhstan  would like to thank Switzerland for the 
attention paid to Kazakhstan's intellectual property systems, and questions that were raised by 
their delegation during the review process. It is also grateful to the WTO Secretariat for their 
support and help provided during this process. Kazakhstan has submi tted responses to 
the questions raised by Switzerland in February  2016, special attention was paid to the issues on 
patents, protection of undisclosed information, provisional measures and enforcement of 
intellectual property rights. The detailed responses  to the questions of Switzerland can be found in 
the relevant documents su bmitted to the WTO Secretariat.  
3.  After its accession to the WTO, Kazakhstan continues its efforts on further improvement of the 
legislation in the field of intellectual property. The Minister of Justice of Kazakhstan submitted to 
the Parliament of Kazakhstan in November 2016 a draft law and a development of the scientific 
and technological process simplification of registration procedures, and management of legal gaps 
and provisions th at may create administrative barriers in the field of intellectual property.  
4.  In the future, Kazakhstan plans to continue its work on further improvement of legislation and 
enforcement of intellectual property and it is open to any collaboration on these is sues with WTO 
                                                
1 As regards laws and regulations notified by Kazakhstan  under Article 6 3.2 of the Agreement, reference 
is made to documents IP/N/1/ KAZ/C/1, IP/N/ 1/KAZ/T/1, IP/N/1/ KAZ/P/1, IP/N/1/ KAZ/O/1, IP/N/1/ KAZ/O/2, 
IP/N/1/ KAZ/O/3, IP/N/1/ KAZ/O/4, IP/N/1/KAZ/O/5/Rev.1, IP/N/1/KAZ/O/6, IP/N/1/KAZ/O/7, IP/N/1/KAZ/O/8, 
IP/N/1/KAZ/O/9, IP/N/1/KAZ/O/10, IP/N/1/KAZ/O/11, IP/N/1/KAZ/O/12, IP/N/1/KAZ/O/13, IP/N/1/KAZ/ O/14, 
IP/N/1/KAZ/O/15, IP/N/1/KAZ/O/16,  IP/N/1/KAZ/O/17, IP/N/1/KAZ/O/18, IP/N/1/KAZ/O/19/Rev.1, 
IP/N/1/KAZ/O/20, IP/N/1/KAZ/O/21, IP/ N/1/KAZ/O/22, IP/N/1/KAZ/O/23, IP/N/1/KAZ/O/24, 
IP/N/1/KAZ/O/25, IP/N/1/KAZ/O/26 and IP/N/ 1/KAZ/O/27. 
2 The minutes of thi s meeting have been circulated as document IP/C/M/ 82. 
3 The minutes of this meeting have been circulated as document IP/C/M/86 . 
4 As reflected in paragraphs 37 to 40 of IP/C/M/85 /Add.1.  IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  Members. Kazakhstan is  also open to any further questions that WTO Members may have on its 
intellectual property system.  
2  RESPONSES TO THE QUE STIONS POSED BY SWIT ZERLAND5 
2.1  GENERAL  
1.  Are the provisions of the TRIPS Agreement, as far as not imp lemented in national 
law, directly applicable in the legal system of Kazakhstan?  
Paragraph 3 of Article 4 of the Constitution of the Republic of Kazakhstan stipulates that 
international agreements ratified by Kazakhstan have priority over national legislat ion and this 
provision also applies to the TRIPS Agreement and the terms of the Protocol of Accession of 
the Republic of Kazakhstan to the WTO. Ratified international agreements are applied directly, 
except in cases when a law has to be adopted before an i nternational agreement became 
applicable . A law has to be adopted in cases, where (i)  the current legislation does not comply with 
the WTO Agreement and has to be amended to comply with the WTO Agreement; or, (ii)  issues 
contained in the WTO  Agreement are not addressed in existing legislation. However, it must be 
mentioned that in the process of its accession to the WTO Kazakhstan ensured full compliance of 
its legislation with commitments undertaken in accordance with the TRIPS Agreement and 
the Protocol o f Accession of the Republic of Kazakhstan to the WTO.  
Specifically, the Law of the Republic of Kazakhstan No. 365 -V "On Amendments and Addenda to 
Certain Legislative Acts of the Republic of Kazakhstan in Connection with Accession to 
the World  Trade Organiz ation" was adopted on 27  October  2015.  
With the purpose of implementation of intellectual property obligations, the following amendments 
were made into national legislation of the Republic of Kazakhstan:  
• In order to bring national legislation in compliance  with Article 46 of the TRIPS Agreement 
amendments were made to the Civil Code, Code on Administrative Violations and 
Trademarks Law. These amendments provide that simple removal of unlawful trademark is 
not sufficient and guarantee that counterfeit goods will be destroyed.  
• In order to bring national legislation in compliance with Article 39.2 of the TRIPS Agreement 
and ensure 6 years of data exclusivity to producers of original pharmaceutical products, 
amendments were made to the Health Code of the Republ ic of Kazakhstan.  
• In order to bring national legislation in compliance with Article 31 of the TRIPS Agreement 
amendments were made to the Patent Law, providing that:  
- compulsory license for semi -conductor technology shall only be granted for public 
non-commercial use; and  
- any compulsory license shall be issued in the first instance for providing for demands 
of the domestic market of the Republic of Kazakhstan, except when the purpose of 
the license is to export the patented product to a territory with no  or insufficient 
manufacturing capacity, in accordance with international agreements, ratified by 
the Republic of Kazakhs tan. 
2.2  PATENTS  
2.  Does the legislation of Kazakhstan grant patent protection for inventions relating 
to products and processes in all fi elds of technology? Are there any exceptions? If yes, 
please indicate these exceptions and explain how they comply with Article 27 of 
the TRIPS Agreement.  
According to paragraph 1 of Article 6 of the Patent Law inventions s hall be protected if they are 
new, involve an inventive step, and are capable of industrial application . Paragraph 2 of Article  6 of 
the Patent Law provides that patent protection shall be available to inventions in any field of 
technology whether products or processes as required by Arti cle 27 of the TRIPS Agreement.  
                                                
5 The questions posed by Switzerland  are contained in document  IP/C/W/ 620. The responses made by 
Kazakhstan  are contained in document IP/C/W/ 626. IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  Exceptions are provided in paragraph 3 of Article 6 according to which the Patent Law does not 
recognize as inventions: (i)  discoveries; (ii) scientific theories; (iii)  mathematical methods; 
(iv) methods of economic organizat ion and management; (v)  symbols, schedules, and rules; 
(vi) rules and methods for mental activities; (vii) algorithms per  se and computer programs; 
(viii) projects and plans of buildings and structures, and land development; (ix)  proposals 
concerning solel y the outward appearance of manufactured goods; and, (x)  proposals that are 
contrary to the public order, humanitar ian principles and morality.  
At the same time, diagnostic, therapeutic and surgical methods can also be protected as 
inventions  under the Art icle 6 criteria.  
Abovementioned exceptions were discussed  with the members during the process of Kazakhstan’s 
accession to the WTO and it was agreed that they comply with exceptions allowed under 
the Article 27 of the TRIPS Agreement.  
3. Does the legislati on of Kazakhstan, in accordance with Article 27.1 in combination 
with Article 31 of the TRIPS Agreement, consider importation as "working" a patent and 
therefore preclude compulsory licensing, if a product is being imported?  
Paragraph 2 of Article 11 of th e Patent Law stipulates the requirement that a patented invention be 
used, while "use" is defined as manufacturing, application, importation,  offer for sale, sale, as well 
as other means of putting the industrial property into circulation, including stor age in view of 
subsequent use. Therefore,  in the case of importation of a patented product, non -use for 
the purpose of compulsory licensing cannot be established under Kazakhstan's Patent Law.  
4.  Does the legislation of Kazakhstan make the granting of a com pulsory license 
subject to all the conditions enumerated in Article 31 TRIPS of the TRIPS Agreement? 
Please cite the relevant provisions of the legislation.  
All the conditions enumerated in Article 31 of the TRIPS Agreement can be found in paragraphs 
4 and 5 of Article 11 of the Patent Law of the Republic of Kazakhstan.  
According to the abovementioned provisions, when the patentee does not use the industrial 
property object and refuses to conclude a licensing agreement on acceptable commercial terms 
within 90 calendar days from the day of request, any person have the right to apply to a court with 
a claim on being granted a compulsory non -exclusive license  when the object of industrial property 
was not continuously used after the first publication of informa tion on the issue of the protection 
document on the industrial property object during any three years preceding the da te of 
submission of such claim.  
If the patentee does not prove that the non -use is stipulated by good reasons, the court grant 
the indicat ed license with determination of limits of use, deadlines, amount and procedure for 
payments. The amount of payments is established not lower than the market price of the license 
as defined in accordance with th e established practice.  
Compulsory license in  respect of an invention in the field of semi -conductor technology is only 
granted for public non -commercial use or where a judicial body has determined that the existing 
practice is in violation of anti -competitive legislation of the Republic of Kazakhsta n and that 
the grant of compulsory lic ense can remedy such practice.  
Any compulsory license is issued in the first instance for providing for demands of the domestic 
market of the Republic of Kazakhstan, except when the compulsory license concerns a patent  
claiming a pharmaceutical product or a process to obtain a pharmaceutical product, and 
the purpose of the license is to export the patented product or the product manufactured by 
the patented process to a territory with no or insufficient manufacturing ca pacity, in accordance 
with international agreements, ratified by the Republic of Kazakhstan.  
The right to use the indicated industrial property object may be assigned by the person to whom 
the compulsory license was granted to other person only together wi th the relevant production in 
which this item is used.  IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  The compulsory license is subject to revocation by the court in the case of termination of 
the circumstances which were the reason for its issue.  
The patentee who cannot use the object of industrial pr operty without infringing the right of 
the holder of another patent who has refused to conclude a licensing agreement on acceptable 
commercial terms has the right to apply to the court with application claim on being granted 
a compulsory non -exclusive lice nse to use the object of industrial property in the territory of 
the Republic of Kazakhstan.  
If the patent holder who cannot use the object of industrial property without infringing the rights 
of the holder of another patent proves that his industrial prop erty object represents an important 
technical advance and has a considerable economic significance in relation to the object of 
industrial property of another patent, the court may decide to grant him  a compulsory license.  
When granting the indicated licen se the court determines the limits of use of the object of 
industrial property the patent on which belongs to other person, deadlines, amou nt and procedure 
for payments. In this respect, the amount of payments is established not lower than 
the market  price of the license as defined in accordance  with the established practice.  
The right to use the object of industrial property obtained on the basis of the present paragraph 
may be assigned only with the assignment of the protection document on this object of industrial 
property in connection therewith this right is granted.  
In the case of granting in accordance with this paragraph of a compulsory license to the patent 
holder of protection document the right to use on which was granted on the basis of indicated  
license will also have a right to receive a license to use the dependent invention in connection 
therewith compulsory license was granted.  
5.  Does the legislation of Kazakhstan provide for the principle of the reversal of 
burden of proof in patent litiga tion? Please cite the relevant provisions of the legislation.  
With regard to reversal of the burden of proof in civil proceedings concerning the infringement of 
process patents, it must be mentioned that the requirements of Article  34 of the WTO 
TRIPS  Agreement are not covered by the Patent Law, but contained in Article  65 of 
the Civil Procedure Code, which stipulates that each party is responsible for providing proof for its 
own claims and statements. Other parties involved in the process can also provide evidence.  
2.3  PROTECTION OF UNDISC LOSED INFORMATION  
6.  Please explain in detail if the legislation of Kazakhstan ensures that undisclosed 
test or other data submitted by an applicant to the responsible State agency in 
the procedure for market authorization of  a pharmaceutical or of an agricultural 
chemical product is protected against disclosure and against unfair commercial use by 
a competitor, for example by prohibiting a second applicant from relying on, or from 
referring to the original data of the first a pplicant, when applying subsequently for 
market authorization for their own product.  
According to paragraph 19 of Article 71 of the Code of the Republic of Kazakhstan "On People's 
Health and Healthcare System" of 18 September 2009 (further – the Health Cod e) State Expert 
Organization as well as state body in the field of circulation of pharmaceutical products, medical 
devices and equipment shall not be allowed without consent of the applicant to disclose and use 
with commercial purpose of undisclosed inform ation contained in application for state registration, 
documents on examination as well as in registration dossier of pharmaceutical product that contain 
new chemical entities during the period of 6 years after state registration of a pharmaceutical 
produc t. 
With regard to agrochemical prod ucts it must be mentioned that according to Law No.  302-III 
"On Safety of Chemical Products" of 21  July 2007 and Government Resolution No.  1396 
"On Approval of the Rules on Registration and Production Testing and State Re gistration of 
Pesticides" of 30  November  2011, registration requirements for chemical products, pesticides and IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  poisons are the same for every applicant and does not permit the reliance on undisclosed data 
developed or submitted by another applicant to obta in product registration.  
7.  Does your legislation provide for exceptions to this protection of undisclosed 
information? If so, please explain under what conditions would such exceptions apply?  
According to paragraph 19 of Article 71 of the Code of the Rep ublic of Kazakhstan "On People's 
Health and Healthcare System" of 18 September 2009 State Expert Organization as well as state 
body in the field of circulation of pharmaceutical products, medical devices and equipment shall 
not be allowed without consent o f the applicant to disclose and use with commercial purpose of 
undisclosed information contained in application for state registration, documents on examination 
as well as in registration dossier of pharmaceutical product that contain new chemical entities  
during the period of 6 years after state registration of a pharmaceutical product.  
Based on decision of the court, disclosure and use of undisclosed information indicated in 
paragraph 19 of Article 71 of the Health Code shall be allowed if:  
1) supplies of ph armaceutical product are not sufficient for satisfaction of needs of 
population during the period of 12 month from the date of registration in the Republic of 
Kazakhstan;  
2)  it is necessary to protect health of population in emergency or guarantee national 
security;  
3)  legislation of the Republic of Kazakhstan in the field of competition was infringed".  
8. Does your legislation provide for a specific term of protection for such undisclosed 
test data?  
As it was mentioned above,  the period of such protection is 6  years after state registration of 
a pharmaceutical product.  
2.4  PROVISIONAL MEASURES  
9.  Do the judicial authorities of Kazakhstan have the authority to adopt, on 
the request of a right holder, a provisional measure inaudita altera parte  before 
an action lead ing to a decision on the merits of the case has been lodged? Please cite 
the relevant provisions of the legislation.  
According to paragraph 2 of Article 157 of the Code of Civil Procedure the court can order any 
provisional measure without prior notice to the participants of the case or parties of arbitration 
(inaudita altera parte ) and with out holding court proceedings.  
In the cases where provisional measures had been adopted inaudita altera parte , parties affected 
had to be given notice without delay afte r the execution of the measures at the latest.  
10.  Does the legislation of Kazakhstan provide for any restrictions for obtaining 
provisional measures? If so, what are these restrictions? Please cite the relevant 
provisions of the legislation.  
According to  Article 155 of the Code of Civil Procedure, provisional measures shall not be applied 
with regard to:  
• financial organiza tion in the process of restructo rization in cases provided by the legislation 
of the Republic of Kazakhstan;  
• suspension of validity of the contested legal acts of the National Bank of the Republic of 
Kazakhstan on suspension of activity at the financial market, conservation of financial 
organizations, as well as its written instructions;  
• suspension of  validity of the contested legal acts of the state revenue bodies that serve as 
a basis for tax examinations.  IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  11.  Please describe the provisional measures provided for in the legislation of 
Kazakhstan, including those for combatting counterfeiting and piracy. Please describe 
the procedures th at must be followed and cite the relevant provisions of legislation.  
According to Article 155 of the Code of Civil Procedure, upon application of participants of the case 
or parties of the arbitration, the court can apply provisional measures in cases wher e, in their 
absence, the court will not be able to issue a ruling or its work will be hindered . 
Parties of the arbitration must provide the document confirming submission of the arbitration claim 
together with the application for provisional measure.  
Accor ding to Article  156 of the Code of Civil Procedure, provisional measures can be the following: 
(i) seizure of the defendant's property; (ii)  prohibition for the defendant to take certain actions; 
(iii) prohibition for other persons to transfer property or perform certain actions in respect to 
the defendant; (iv) suspension of the sale of property in cases where a claim was filed to cancel 
the seizure of property; (v) suspension of a contested legal act issued by a State body, 
organization or an official; an d, (vi)  suspension of a penalty imposed by an executive document, 
contested by the debtor in court; (vii) suspension of trading on the extrajudicial sale of pledge; 
(viii) suspension of the contested acts and actions of the judicial executor related to for eclosure on 
the property, made during execution proceedings. The court could also apply other provisional 
measures for the purposes of Article  155 of the Code of Civil Procedure.  
Measures for satisfaction of a claim must be proportionate to the demand of a plaintiff, and not 
violate public interest and the interests of third parties.  
12.  Please describe the measures provided by the legislation of Kazakhstan to combat 
counterfeiting and piracy at the border. Please explain whether the competent 
authorities  are empowered to act ex officio  and, if so, please indicate the enforcement 
actions that may be taken. Please cite the relevant provisions of the legislation.  
Border measures in Kazakhstan are applied pursuant to Chapter 46 (Articles 328 -333) of 
the Custo ms Code of the Customs  Union of 27 November 2009 and Section 53 of the Customs 
Code of Kazakhstan (Articles  436-445). Consistent with the procedures set -out in Chapter 46 and 
Section  53, Kazakhstan's customs authorities are authorized to take action to pre vent the import 
and export of goods containing objects of  intellectual property rights. Kazakhstan's State Revenue 
Committee maintains a Registry of goods containing intellectual property, which is published 
periodically. Goods are included in the Registry  free of charge, at the request of right holders. This 
guarantee that the rights of applicants will be protected by the customs authorities for the duration 
specified in the application, with the maximum period being two years from the date of inclusion in  
the Registry (with a possible extension, which cannot exceed the period of validity of the right 
itself). Although right holders can register their intellectual property with the State Revenue 
Committee, customs officials can exercise ex officio  authority  to seize suspect goods even if right 
holders  do not have the registration.  
The CU Customs Code and the Customs Code of Kazakhstan authorize the national customs 
authorities to suspend the customs processing of goods containing intellectual property for up  to 
ten working days if the right holder applied for such protection and if they found that the goods 
violated the intellectual property rights of the applicant. When such goods are discovered, 
the customs authorities attempt to identify right holders by c onsulting the Unified Customs 
Registry or Kazakhstan's national Customs Registry. If a right holder did not register its intellectual 
property rights on these registers, the customs authorities attempt to identify and contact 
the right holder by consulting  the registries of the Ministry of Justice. After the right holder is 
identified, the customs authorities inform him/her about the goods under investigation and provide 
the right holder, or his/her representative, with the opportunity to inspect samples/sp ecimens 
from the goods under customs supervision at the place of temporary storage (Article  440 of 
the Customs Code of Kazakhstan and CU Commission Decision No.  258 "On Customs Examination 
under Customs Control" of 20 March 2010). Pursuant to Article  440 o f the Customs Code of 
Kazakhstan, the customs authorities have to provide the right holder with the name and address of 
the declarant, as well as provide the declarant with the name and address of the right holder. 
This has to be done within one day of tak ing a decision to suspend the release of the goods, 
i.e., before the matter is taken to court and before the infringement is identified by IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  the right holder. Pursuant to the Customs Code of Kazakhstan, the customs authorities are entitled 
to receive compens ation to cover expenses incurred in connection with the suspension of 
the goods (e.g., for warehouse storage). For goods that proved to be counterfeit, such 
compensation has to be provided by the declarant, and for goods that proved not to be 
counterfeit, by the applicant. For goods that proved not to be counterfeit, the right holder 
compensate the declarant for any damages incurred (minimum security/guarantee of €10,000 is 
a requirement for right holders wishing to include goods in the national Customs Reg istry). 
The exact amount of compensation can be agreed between the declarant and the right holder, or 
can be determined by the court.  
2.5  ENFORCEMENT OF INTEL LECTUAL PROPERTY RIG HTS 
13.  Please describe how the legislation of Kazakhstan meets the requirements of 
Article 41 TRIPS Agreement. Please cite the relevant provisions.  
Kazakhstan fully applies the provisions of the WTO Agreement on Trade -Related Aspects of 
Intellectual Property Rights, including provisions for enforcement that can be found in the Civil 
Code, the Code of Civil Procedure, the Code of Administrative Offences, the Criminal Code and 
the Code of Criminal Procedure.  
14.  Please indicate the authorities responsible for the application of the measures 
provided by the legislation of Kazakhstan to c ombat counterfeiting and piracy. Please 
explain whether the competent authorities are empowered to act ex officio  and, if so, 
please indicate the enforcement actions that may be taken. Please cite the relevant 
provisions of the legislation.  
Besides the cus toms authorities, the court, the office of the public prosecutor, the internal affairs 
authorities and the financial police are among those who are actively involved in the enforcement 
of intellectual property laws in Kazakhstan. Police units work in close  cooperation with right 
holders as well as conduct repeated, unannounced inspections in order to examine compliance with 
intellectual property rights legislation. If evidence of unauthorized use of intellectual property 
rights protection is found, administ rative or crimi nal proceedings are initiated.  
15. Please describe any new initiatives that are planned to improve the enforcement of 
intellectual property rights in your country. Is there a particular action plan in place?  
Within the process of WTO accessi on Kazakhstan has increased efforts in order to improve 
protection and enforcement of intellectual property rights. National legislation was significantly 
amended in order to bring it in full compliance with the WTO rules. Statistic data for 2015 -2016 
shows that despite decrease in number of inspections, number of cases on infringement of 
intellectual property that were revealed is still growing. Every year the Ministry of Justice regularly 
hold the national campaign "CONTRAFACT" aimed at prevention and det ection of infringements as 
well as persons involved in illegal production and dissemination of goods. It must be mentioned 
that beyond this campaign number of government bodies involved in economic, anticorruption, 
financial and criminal investigations als o take part in everyday intellectual property rights 
enforcement actions.  
The Ministry of Justice of the Republic of Kazakhstan developed and in November 2016 submitted 
to the Majilis of the Parliament of the Republic of Kazakhstan a draft Law "On introduc ing 
amendments and addenda to some legislative acts of the Republic of Kazakhstan on improvement 
in the field of intellectual property law".  
The purpose of the draft Law - further improvement of the legislation in the field of intellectual 
property, develo pment of scientific and technological progress and free competition, simplification 
of registration procedures, elimination of legal gaps and exclusion rules that create administrative 
barriers in the field of intellectual property.  
Drafting of the Law inv olved participation of the relevant public authorities, National Chamber of 
Entrepreneurs of Kazakhstan "Atameken", non -governmental organizations, representatives of 
the Foreign Investors Council, Members of the Council for improvement of the investment c limate, 
patent attorneys.  
Preparation of the draft Law was carried upon reflection on the experiences of the OECD countries.  IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  Discussions of the proposed amendments involved participation of experts and judges from several 
OECD countries (Germany, Japan, Fr ance, the United States) and Russian Federation.  
The main new features of the draft Law are as follows:  
• creation of a single -level intellectual property registration system by delegating to the expert 
organization (RSE "National Institute of Intellectual P roperty") of the authority to issue 
registration rights on intellectual property;  
• expansion of the pre -trial examination possibility related to trademark registration disputes;  
• publication of trademark applications from the moment their arrival to the expe rt 
organization;  
• simplification  of the registration of contracts.  
3  RESPONSES TO THE QUE STIONS POSED BY THE UNITED STATES6  
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 tra ditional art heritage (folk fairy 
tales, folk 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 t hey intended to be works that are 
excluded under 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 Wor king Party on the Accession of Kazakhstan7 
(WPR) "works of amateur and folk arts", as defined by sub -paragraph 39 of Article 2 of 
the Copyright Law, are not protected by copyright 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 have an author; only 
works creat ed 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 protecte d 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 recordings, audio -visual works and other fixations of works covered by 
sub-paragraph 39 of Article 2 will be protected under the Copyright Law. 
Performers/producers/broadcasting organizations have the rights enumerated in  Chapter III 
"Related Rights" of the Copyright Law to fixations of works of amateur and folk arts. Works that 
can arguably fall under the folklore definition of sub -paragraph 39 of Article 2 of the Copyright 
Law, but which are protected as copyrighted work s in the country of origin, will 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 
Conve ntion and other treaties (e.g.,  Article 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 holder.")  
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 diff erence between "cite" and 
"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 the terms "cite" and "citation" in 
paragraph  1(1) of Article 19 of the Copyright Law means "quote" and "quotation" as used in 
                                                
6 The questions posed by the United States are contained in documents IP/C/W/627. The responses 
made by Kazakhstan are contained in document IP/C/W/628.  
7 WTO Document WT/ACC/KAZ/9 3. IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
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  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 b etween "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 autho rization. What is meant by use for "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 th e Copyright Law  means "to report 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 justified 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 between 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 WPR 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 quota tion 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.  
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 illustr ation in 
periodicals, in 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 compati ble with fair practice.  IP/Q/KAZ/1 • IP/Q2/KAZ/1 • IP/Q3/KAZ/1 • IP/Q4/KAZ/1  
 
- 10 - 
 
  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 broadcast ing 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 c onfirmed 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. "Scien tific research purposes" 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 out 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, provide 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 4 1 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, transmiss ions 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?  
As it was mentioned above in paragraph 1024 of the WPR Kazakhstan stat ed 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 (Articl e 15)  
3) for 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 org anization 
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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