How to confirm copyright before a dispute: documents and methods of recording

People usually come with a question about confirming authorship when the work is already being used by third parties and there is no evidence of its creation and ownership. For a private client this may be a text, a photograph, music, a design; for an entrepreneur — a logo, a website, software code or advertising material. The law does not require registration for copyright to arise, but it is precisely the absence of evidence drawn up in advance that becomes the main problem in a dispute.

From this article you will learn who is recognised as the author by law, which documents confirm copyright, and how deposit of a copy, registration in the Legal Cadastre and notarisation work. We look separately at the protection mark, clauses on rights in contracts with employees and contractors, recording infringements on the internet, and the typical mistakes that deprive you of evidence even before proceedings begin.

Copyright: what the law protects and why this matters before a dispute

The law treats as works the result of creative labour in an objective form: text, image, audio, video, drawing, program. An idea, theme or method is not protected — what matters is the form in which the result became available to others. Copyright arises by virtue of the fact of creation, without registration or formalities: the author has the rights from the moment the work took an objective form.

The scope of rights is not uniform. Personal non-property rights are inalienable and perpetual: the right of authorship, the right to a name, the right to the integrity of the work. Economic rights allow the work to be used and disposed of; they are transferable and time-limited. A single work may be in economic circulation while remaining tied to the author's person.

Who is considered the author by law and how copyright is distributed

Under the Law of the Republic of Kazakhstan on Copyright and Related Rights, the author is the individual by whose creative labour the work was created. Until proven otherwise, the author is the person indicated on the original or a copy or in the register. The presumption shifts the burden of proof onto the person challenging authorship.

Rights in a work created by the joint creative labour of two or more persons belong to the co-authors jointly; the work as a whole is used jointly, and where the parts are distinguishable each retains the right to their own part. An agreement between the co-authors sets out the terms and procedure for exercising the rights.

• the work was created by an employee under a work assignment — economic rights belong to the employer, personal non-property rights to the author
• the work was created under an author's commission contract — the scope of the customer's rights is determined by the contract
• the work was created by several persons — the rights belong to the co-authors jointly
• the work was created by the person indicated on the copy — the presumption of authorship applies until it is rebutted
• the rights are registered in the register — the entry serves as evidence of ownership of the rights until proven otherwise

Which documents confirm copyright in advance

Evidence gathered in advance confirms copyright more convincingly than explanations after the fact. A court in Kazakhstan assesses not a presentation of the project but the body of information about who created the result and when. The earlier it is recorded in an independent source, the harder it is to challenge, so files are kept in their original form with dates and edits.

Drafts and interim versions show the process of work and its sequence. Source files in their original formats reveal the layers, revision history and metadata. Correspondence by email or messenger confirms who discussed the text, melody, image and made edits. Contracts and acts record on what basis the material came into a particular person's hands.

Deposit and registration: how to secure copyright in the register of intellectual property objects and with a notary

Copyright arises by virtue of the creation of a work and does not require registration. But in a dispute, authorship is proved by the party relying on it, so the date and content of the work are recorded in advance. In Kazakhstan it is possible to enter information in the register of rights to intellectual property objects, to deposit a copy, to have a notarial inspection and certification of date. The method is chosen according to the type of work and its evidentiary weight.

Information is entered in the register by the authorised body in the field of intellectual property: the applicant submits materials confirming the creation of the object, after which a certificate is issued. The record does not create an irrefutable presumption of authorship, but it confirms priority and the good faith of the right holder and is available for verification by third parties. Deposit is the transfer of a medium for storage with the date of receipt recorded: it confirms that at a particular moment the depositor had precisely this text, drawing, image or audio recording. A notary certifies the date on which a document was presented and, where necessary, inspects an internet page or file, recording the state of the object on a specific day.

The methods are used separately or together, depending on the type of work and the circumstances of the dispute.

Copyright notice and service marks: how to mark copyright on a copy

The copyright notice on a copy of a work consists of three elements: the Latin letter C in a circle, the name or designation of the right holder and the year of first publication. Such a notice merely informs of claimed copyright and does not create it: rights arise by virtue of the fact of creation of the work and do not require registration. However, a notice that is affixed disciplines the counterparty and designates the person's claims in advance.

If the copyright notice is affixed not by the author but by a publisher or other user, this in itself does not transfer rights. What matters is who is indicated as the right holder and whether this coincides with the actual creator. Therefore, on a copy it is useful to indicate the author under his name or the pseudonym under which he acts.

• copyright notice: the letter C in a circle, the name or designation of the right holder, the year of first publication
• the author's name or pseudonym on the copy, title page or reverse
• year of release and reference to the copy released
• production marks in the layout: date, order number, signature of the person who accepted it
• metadata of working files: date of creation and modification, account author
• print run records: batch number, release date, number of copies

Copyright arises automatically, but in a dispute the winner is not the one who created the work, but the one who can prove it with documents dated earlier than the infringement.

Copyright in contracts: recording the transfer and the prohibition on use

The contract records the moment when exclusive rights pass and the scope of permitted use. If the result was created by a contractor, designer or photographer, it must expressly state that copyright passes to the customer from the moment the acceptance act is signed or from another date. Without such a clause, the rights remain with the contractor, even if the customer paid for the work and received the files.

On alienation, the exclusive right passes in full and the former right holder loses the ability to use the work. Under a licence, the rights remain with the author, and the user receives only the powers set out in the contract: the manner of use, term, territory and the right to transfer them to third parties. Mixing these constructions in one contract creates a dispute over what the parties actually intended.

• An express statement of the transfer of exclusive rights and the moment they pass.
• Distinguishing alienation from a licence, with a description of the permitted manners of use.
• Term, territory and the right to transfer rights to third parties.
• Prohibition on use before payment and after termination of the contract.
• A work-for-hire clause in an employment contract or agreement.
• Procedure for recording the creation of the result: act, assignment, correspondence.

Problems of copyright protection on the internet: how to record an infringement

Before the page is deleted, the fact of infringement is recorded: the text or image, the date of posting and details of the author of the publication are saved. A screenshot without the page address, date and time is weak as evidence and easily challenged, so the methods are used simultaneously.

A notarial inspection is more reliable: the notary draws up a protocol with the content of the site, the address and the time of inspection, which gives it greater evidentiary weight. In addition, the hosting provider and the site owner are asked to preserve logs and data on the author of the posting. If the content has been deleted, the information is recovered through archives and search engine caches.

• a screenshot with the address bar, date and time, taken on a device with the correct settings
• a notarial inspection of the page with a protocol drawn up
• a request to the hosting provider to preserve logs and data on the site owner
• a written demand to the site owner to record and remove the disputed material
• preservation of source files, drafts and correspondence with dates
• archived copies of the page in search engine caches

When you need a lawyer's advice on copyright

Self-recording of authorship works as long as there is no counterclaim. In a dispute over co-authorship, it is necessary to distinguish the creative contribution of each person and to justify whose contribution formed a separate object. It will be necessary to assess not only dates and drafts, but also the nature of each person's participation.

A separate category is conflicts with an employer or a client. Under the Law of the Republic of Kazakhstan "On Copyright and Related Rights", a work made for hire belongs to the employer unless otherwise provided by the contract, and rights under a commission contract transfer to the extent expressly specified in the agreement. Without analysing the contract and work assignments, it is difficult to prove one's position.

• a dispute over co-authorship and the distribution of creative contribution
• a conflict with an employer over a work made for hire
• disagreements with a client over the contract and the scope of rights transferred
• a third party's claim of unlawful use
• a large print run or a commercial project with high risks
• the need to assess the prospects of protection before going to court

Copyright protection by a lawyer: preparing evidence before a dispute

Pre-trial work begins with recording the object and information about its creator: drafts, source files, correspondence, publication dates, depositary records. Protection is built on the presumption of authorship: the person indicated as the author on a copy is considered the author until proven otherwise. The specialist's task is to secure this with documents that the court will accept without further verification.

Next, a claim letter is prepared with a calculation of the demands and references to the provisions of the Civil Code of the Republic of Kazakhstan on the protection of exclusive and personal non-property rights. The scope of the infringed rights is assessed through reproduction, distribution, alteration, and making available to the public. Evidence is attached, along with a proposal to settle the conflict without court. Negotiations are conducted in writing so that every action of the parties is recorded.

• an inventory and certification of copies of the work
• preservation of correspondence with the defendant and counterparties
• verification of information about the author in registries and depositaries
• calculation of the infringement for each right
• a draft claim letter and recording of its dispatch
• collection of materials for securing a claim

Copyright of an employee and a contractor: typical mistakes in paperwork

A dispute over the ownership of copyright usually arises when the relationship is not documented in writing. Under the Law of the Republic of Kazakhstan "On Copyright and Related Rights", rights to a work made for hire belong to the employer unless otherwise provided by the employment contract, and to a work created under commission — to the client only within the limits expressly specified in the contract. Without these conditions, authorship and the exclusive right remain with the employee or contractor.

The second mistake is handing over source files without written stipulations: without a condition on the transfer of the exclusive right and the procedure for using the result, the recipient is not entitled to alter it or use it commercially. Oral agreements are difficult to prove in a dispute.

The third mistake is using third-party materials (photos, fonts, texts, code) without checking the licence: this is a risk of claims against both the contractor and the client.

Comparison of ways to confirm copyright: what to choose in a specific situation

The ways of recording authorship differ in speed, evidentiary weight and suitability for specific tasks. For commercial use, what matters is the ability to confirm rights when transferring them to a counterparty or investor; online, it is the link to the publication date and the author.

Copyright arises by virtue of the fact of creation, but in a dispute confirmation depends on evidence. A notarial inspection, depositing with a provider and registration in the registry of intellectual property objects give different evidentiary weight. For court, notarised materials and official registries carry the most weight; electronic services are convenient but are assessed alongside other evidence. A comparison of the main methods is given below.

• A notarial inspection — high evidentiary weight, suitable for court and commercial use.
• Depositing with a provider — quick, suitable for online use, but the storage terms need to be checked.
• Registration in the register of intellectual property objects — official confirmation, used for commercial transactions.
• Publication with a date stamp — fast, suitable for online use, but weaker in court.
• Electronic signature and time stamps — speed up fixation, but depend on trust in the operator.

The choice of method depends on the purpose: for online use, prompt methods are sufficient; for court and commercial transactions, a notarial inspection or the Legal Cadastre is preferable.