October 11, 2010 at 16:32Fees "from discs"
More recently, we wrote about the amendments to article 1273 of the Civil Code, regulating the so-called “right to home copying”. On October 8, the adopted law was published in the Rossiyskaya Gazeta, and will enter into force ten days after publication.
And shortly before this, the sixth, it became known that the Federal Service for the Supervision of Legislation in the Field of the Protection of Cultural Heritage (Rosokhrankultura) refused to determine the organization that would be authorized to collect remuneration for such copying. We’ll talk about this reward today.
“ Piracy Tax ”
As you know from the previous article, article 1273 allows you to copy legally published works for personal purposes ( with the exception of computer programs ). But according to the plan of the legislator, copyright holders should somehow receive compensation for this. Therefore, the code has another article, 1245 , which states that deductions must be paid to copyright holders for “home copying”. This obligation is assigned to manufacturers and importers of equipment and storage media, which, in turn, include this money in the price of goods.
The buyer pays for everything. One can argue about the legitimacy of this approach to collecting deductions. Increasingly, calls are being made to replace this collection with an “intellectual tax”, by paying which the user will receive the right not only to download content, but also to participate, for example, in the distribution of torrents. In some countries, such a “tax” has already been introduced, but Russia certainly does not face such a prospect in the next twenty years, so you will have to live with the legislation that exists.
Unfortunately, there are a number of misconceptions associated with “ home copying ”: under the influence of the domestic press, many believe that article 1273 allows only “ licensed content ” to be copied for itself", And that files uploaded by" pirates "do not fall under this permission. This is not true: the law requires that the work be " lawfully made public ." And “ disclosure ” means any actions that make a work accessible to an unlimited circle of people.
However, relatively recently, supporters of this misconception have a powerful argument: the latest ruling of the plenums of the Supreme and Supreme Arbitration Courts “ On some issues that arose in connection with the enforcement of part four of the Civil Code of the Russian Federation". It states, in particular: “When applying Article 1273 of the Civil Code of the Russian Federation, courts should take into account: reproduction, that is, the production of one copy of a work or more or part of it in any tangible form, is not a violation of exclusive rights to a work only if at the time of making such an instance, the work itself is used legitimately. So, a violation of the exclusive right to a work is the production of one copy of the work or more, carried out from a counterfeit copy or with unlawful disclosure to the public (including when illegally posted on the Internet). ”
It is easy to see that the text of the interpretation of the law differs from the text of the law itself: “promulgation” from article 1273 is replaced by “use”. In fact, the courts here, instead of interpreting, took up rule-making and invented a new rule of law, exceeding their powers.
The meaning of deductions from discs is that they are paid from each blank disc, regardless of which disc or file is copied to this disc, “licensed” or “pirated”. That is why the legislator allowed to copy “legally published”, and not “legally used” works. Deductions "from discs" are intended to compensate the rightholders for lost profits by "legalizing" copies of works that are used for personal purposes and do not participate in civil circulation, regardless of the source of such copy.
As a rule, in the domestic press a series of publications about the “download ban” arise “based on” foreign persecution of torrent users. But, if you carefully study Western sources, then in them we are almost always talking not about “downloading”, but about distribution, most often with the help of torrents. However, when translated into Russian, for some reason it turns into a “download,” which may give the impression that “home copying” is prohibited in the West. Of course, this is not so. But the more often it will be written there that “copying was banned,” the closer the moment when police officers will really check other people's players on the streets ... The
government is breaking records
In late September, Rosokhrankultura held a meeting of the accreditation commission, which determined which of the two applicants to entrust the collection of this money. Two organizations claimed the role of collector: “Russian Union of Copyright Holders”, created with the direct participation of RAO, specifically “under accreditation”, and “Russian Society for Related Rights” (ROSP).
However, later Rosokhrankultura refused to identify an authorized organization. The reason for this was the lack of regulatory documents that determine the procedure for payment of such remuneration and its rate.
The story with these documents began with the adoption of the old law "On Copyright and Related Rights", which provided for such fees. However, in fact, they were not going to: everything rested on by-laws on the collection procedure and its rates. Rather, in their absence ... The government should have developed and adopted them back in 1993 when the law "On Copyright ..." was adopted, but then this was not done.
In 1998, another decree was issued., as a reminder. The government was instructed to develop and adopt these ill-fated documents within three months. This was not done - not in a three-month period, nor in a three-year period. It all ended with a letter from the Federal Customs Service stating that, since there is no such order, equipment and carriers from which deductions should be taken can be imported as well - but only after giving a preliminary promise to pay this fee. The interim order has become permanent, since there are still no necessary regulatory acts.
Not so long ago we published a brief reviewbroken deadlines of ministries in the transition to electronic services to the population. The record holder of that post was delayed for only a year. Of course, he cannot compare with the Government, which for seventeen years has not been able to determine the procedure for carrying out fees “from discs” ... But, apparently, soon the necessary decisions will nevertheless be adopted, and the actual collection of these deductions will begin. Then users will have the full right to wonder about what they pay money for.
And shortly before this, the sixth, it became known that the Federal Service for the Supervision of Legislation in the Field of the Protection of Cultural Heritage (Rosokhrankultura) refused to determine the organization that would be authorized to collect remuneration for such copying. We’ll talk about this reward today.
“ Piracy Tax ”
As you know from the previous article, article 1273 allows you to copy legally published works for personal purposes ( with the exception of computer programs ). But according to the plan of the legislator, copyright holders should somehow receive compensation for this. Therefore, the code has another article, 1245 , which states that deductions must be paid to copyright holders for “home copying”. This obligation is assigned to manufacturers and importers of equipment and storage media, which, in turn, include this money in the price of goods.
The buyer pays for everything. One can argue about the legitimacy of this approach to collecting deductions. Increasingly, calls are being made to replace this collection with an “intellectual tax”, by paying which the user will receive the right not only to download content, but also to participate, for example, in the distribution of torrents. In some countries, such a “tax” has already been introduced, but Russia certainly does not face such a prospect in the next twenty years, so you will have to live with the legislation that exists.
Unfortunately, there are a number of misconceptions associated with “ home copying ”: under the influence of the domestic press, many believe that article 1273 allows only “ licensed content ” to be copied for itself", And that files uploaded by" pirates "do not fall under this permission. This is not true: the law requires that the work be " lawfully made public ." And “ disclosure ” means any actions that make a work accessible to an unlimited circle of people.
However, relatively recently, supporters of this misconception have a powerful argument: the latest ruling of the plenums of the Supreme and Supreme Arbitration Courts “ On some issues that arose in connection with the enforcement of part four of the Civil Code of the Russian Federation". It states, in particular: “When applying Article 1273 of the Civil Code of the Russian Federation, courts should take into account: reproduction, that is, the production of one copy of a work or more or part of it in any tangible form, is not a violation of exclusive rights to a work only if at the time of making such an instance, the work itself is used legitimately. So, a violation of the exclusive right to a work is the production of one copy of the work or more, carried out from a counterfeit copy or with unlawful disclosure to the public (including when illegally posted on the Internet). ”
It is easy to see that the text of the interpretation of the law differs from the text of the law itself: “promulgation” from article 1273 is replaced by “use”. In fact, the courts here, instead of interpreting, took up rule-making and invented a new rule of law, exceeding their powers.
The meaning of deductions from discs is that they are paid from each blank disc, regardless of which disc or file is copied to this disc, “licensed” or “pirated”. That is why the legislator allowed to copy “legally published”, and not “legally used” works. Deductions "from discs" are intended to compensate the rightholders for lost profits by "legalizing" copies of works that are used for personal purposes and do not participate in civil circulation, regardless of the source of such copy.
As a rule, in the domestic press a series of publications about the “download ban” arise “based on” foreign persecution of torrent users. But, if you carefully study Western sources, then in them we are almost always talking not about “downloading”, but about distribution, most often with the help of torrents. However, when translated into Russian, for some reason it turns into a “download,” which may give the impression that “home copying” is prohibited in the West. Of course, this is not so. But the more often it will be written there that “copying was banned,” the closer the moment when police officers will really check other people's players on the streets ... The
government is breaking records
In late September, Rosokhrankultura held a meeting of the accreditation commission, which determined which of the two applicants to entrust the collection of this money. Two organizations claimed the role of collector: “Russian Union of Copyright Holders”, created with the direct participation of RAO, specifically “under accreditation”, and “Russian Society for Related Rights” (ROSP).
However, later Rosokhrankultura refused to identify an authorized organization. The reason for this was the lack of regulatory documents that determine the procedure for payment of such remuneration and its rate.
The story with these documents began with the adoption of the old law "On Copyright and Related Rights", which provided for such fees. However, in fact, they were not going to: everything rested on by-laws on the collection procedure and its rates. Rather, in their absence ... The government should have developed and adopted them back in 1993 when the law "On Copyright ..." was adopted, but then this was not done.
In 1998, another decree was issued., as a reminder. The government was instructed to develop and adopt these ill-fated documents within three months. This was not done - not in a three-month period, nor in a three-year period. It all ended with a letter from the Federal Customs Service stating that, since there is no such order, equipment and carriers from which deductions should be taken can be imported as well - but only after giving a preliminary promise to pay this fee. The interim order has become permanent, since there are still no necessary regulatory acts.
Not so long ago we published a brief reviewbroken deadlines of ministries in the transition to electronic services to the population. The record holder of that post was delayed for only a year. Of course, he cannot compare with the Government, which for seventeen years has not been able to determine the procedure for carrying out fees “from discs” ... But, apparently, soon the necessary decisions will nevertheless be adopted, and the actual collection of these deductions will begin. Then users will have the full right to wonder about what they pay money for.