“Does the RSP live well?” Or “What else can be said about Mikhalkov’s tax?”

Having posted yesterday's article, combining the analysis of Mikhalkov's “old” tax “on equipment and wheels” and the new one on websites, I realized that this is not enough to fully cover the situation. In addition, comments on the article showed that many simply do not understand the meaning of this tax, which, however, is not strange: it does not directly affect the population, and none of the officials gave a detailed explanation of it. Let’s try to analyze the “carrier tax” and find out what is bad in it, what it is based on and what awaits it in the future, and also to find out if the RSP lives well, as many people think.

So what do we know about the Russian Union of Copyright Holders? According to the charter, this “office” has the status of an All-Russian public organization, that is, non-profit individuals (non-profit individuals differ from commercial ones in that they do not set out to make a profit, although no one bothers them with getting money). The president of the union is Nikita Mikhalkov, and the vice president is Yuri Abramovich Bashmet. The board of the RSP includes such personalities as Sergey Bezrukov, Makovetsky, Rastorguev, Stoyanov and others. According to the charter of the RSP, the main subject of its activity is the management of rights on a collective basis and assisting copyright holders in the implementation and protection of their intellectual rights on a contractual basis. And in paragraph 1.2 of the charter of the RSP (at least in the version posted on their website) it is clearly indicated that "the Organization operates in more than half of the constituent entities of the Russian Federation and has an all-Russian status." It is logical to assume that if the Organization for some reason loses a part of its representative offices and operates in less than half of the entities, then its activities will become illegal.

Important detail

However, the charter is just an internal document. He does not give the right to act on behalf of all copyright holders in the territory of the Russian Federation (even those with which the contract has not been concluded), and even less so to collect any mandatory deductions. The secret of “success” lies in article 1244 of the Civil Code of the Russian Federation, which states that an organization for the management of rights on a collective basis (exactly this, I recall, is the RUE) can receive state accreditation for carrying out activities. The same article states that accreditation is given in various fields. Specifically, the RSP works in the field of protecting the rights of authors, performers, manufacturers of phonograms (music) and audiovisual works (films). It should be noted here that any legal entity can protect someone’s rights, including copyright and related rights,but only an accredited organization can do this “by default”, without concluding contracts . Our favorite no less than Mikhalkov RAO also has accreditation. Now you understand how this bread place? By the way, the notorious accreditation is issued by the Federal Service for the Supervision of Compliance with Legislation in the Field of the Protection of Cultural Heritage (in abbreviated form: FSpNzSZvOOKN or, in the old fashioned manner, RosOkhranKultur ).

Here is another interesting point: although the RSP protects the rights of all copyright holders on the territory of the Russian Federation, even foreign ones, it is still possible to refuse its services, both fully and partially (in relation to individual objects of copyright and related rights). This is all covered by the same article 1244 of the Civil Code of the Russian Federation.

In essence

Now let's switch to the tax itself. According to article 1245 of the Civil Code of the Russian Federation, authors, performers, manufacturers of phonograms and audiovisual works have the right to remuneration for the free reproduction of phonograms and audiovisual works exclusively for personal purposes, and this remuneration is paid at the expense of funds that are payable by manufacturers and importers of equipment and tangible media, used for such reproduction. The list of such equipment is established by the appendices to the resolution “On Remuneration for the Free Reproduction of Phonograms and Audiovisual Works for Personal Purposes” of October 14, 2010 N 829. (in the list of equipment, among other things, you can find such funny items as “Keyboard computers”, “ Reel tape recorders ", “Semiconductor media unwritten” and much more). The application also indicates that the funds for the payment of remunerationare not paid by importers of professional equipment not intended for use at home - this item could theoretically become a stumbling block between RSPs and phone manufacturers, though much depends on a specific court decision, because on the other hand these phones are designed for home use , and so Samsung will have to twist still (more on that later).

Nevertheless, let’s try to determine the status of this tax. First of all, let's immediately clarify: although I and most other sources call it that way, in fact, it is not legally tax . This is precisely the reward. Is it mandatory? On this account yesterday stas_agarkovsent me a rather interesting article where the author is trying to prove that it is not necessary to pay this fee. The author of the article is trying to explain to us that in paragraph 5 of resolution No. 829 (in fact, the point was not the resolution itself, but the annexes to it) it is indicated that the obligation to pay arises after the conclusion of the contract between the payer and the PCB, but the obligation to conclude the contract also can only be established by federal law. Alas, such a justification can hardly be called correct. The presented statement was made erroneously, and since all subsequent conclusions are based on it, such a system will not work. The fact is that the obligation to pay actually arises on the basis of the Civil Code of the Russian Federation (the same article 1245), and the decree only regulates it, in particular, establishes the size and procedure for payment. The reason for the payment of funds specified in paragraph 5 of the appendix is ​​just a line of text in the payment order, justification of the payment and an unsubscription for the tax. However, this is just my interpretation of the law. The court can always have a completely opposite opinion.

Essence of the matter

And since I’ve started talking about the courts again, let's look at a completely different option that will help us not to pay RSP. As I wrote last time, Mikhalkov’s situation with his “tax” is far from being as colorful as it seemed in the project: not everyone is paid, and they are threatened with the right to collect. But it turns out that the RSPs can completely deprive accreditation. Nevertheless, no matter what, he occupies a rather good place, and the ability to share is not even provided for by law, so the "competitors" look at Mikhalkov and look for a way to get close. The first bird arrived at the beginning of last year: on January 25, in the Moscow Arbitration Court, the Russian Society for Related Rights (ROSP), one of the main competitors of the RSP, achieved the cancellation of the accreditation of Mikhalkov’s organization, which they did not immediately fail to place a voluminousarticle on your site. However, as we know, the CPF is still in effect. This is due to the fact that the Ninth Arbitration Court of Appeal of Moscow still set aside the decision of a lower court. By the way, ROSP, in addition to claims, is also trying to influence the RSP through the media. They have already pushed several materials on the body and radio channels .

But the courts did not end there. The blow was delivered from a completely different direction. On March 2 this year, the Akushinsky District Court of the Republic of Dagestan, on the basis of the claim of Kurbanmagomedov M.S., recognizedillegal registration of the RSP organization in the Ministry of Justice. The basis for the decision was the fact that, in accordance with the Civil Code, only authors themselves, performers and producers of phonograms, etc. have the right to receive remuneration for the use of copyright, and among the founders of the RSP there are practically no copyright holders. According to the Unified State Register of Legal Entities, at the time of registration on December 21, 2009, the founders of the RSP were the All-Russian Intellectual Property Organization, the Russian Authors Society, the Union of Cinematographers of Russia, as well as Nikolai Denisov, Leonid Vereshchagin and Alexander Klevitsky. As we can see, there are indeed no authors and large firms that own intellectual property rights. On April 6, a similar decision was made in the Elista City Court of the Republic of Kalmykia .

I would like to draw attention to such an interesting point. The court system in Russia suggests that the decision of any court, even the smallest, if it has entered into legal force and has not been challenged, is unshakable and must be enforced throughout the country. He was recognized by some justice of the peace Ivanov Ivan Ivanovich as a goat, so he’s a goat, we’ll write it in the passport (we immediately recall my footnotes in the text: even with the most clear justification of the issue, the judge can always have a completely different opinion, and therefore tax can be considered illegal, and the phones can be called professional equipment). And it doesn’t matter that some commission later discovers that the judge was in a state of extreme intoxication. Judge scolded, fired, but the decision will not be canceled (in this regard, Ivanov has only one loophole - to write to the court for newly discovered circumstances, but this is a topic for another discussion). And therefore, both the Akushinsky District Court and the Elistinsk City Court, no matter how far they seem to us, may well affect the activities of the RSP throughout Russia,the main thing is that their decision is not canceled by higher courts , but for the time being there is still.

A word to the government

However, Mikhalkov also has other "opponents" than the courts. So, in the network you can find information that at the beginning of this year the Government of the Russian Federation instructed the Ministry of Economic Development and the Ministry of Culture until July 1, 2012. submit proposals on the differentiation of the royalty rate from manufacturers and importers of audio, video equipment and storage media. In fact, the idea is to lower the rate for a number of products, and leave the notorious 1% only for a particular type of product. The principle of product separation has not yet been determined, but it is planned to base it on the complexity of the equipment, which, in general, is logical: a household player is not at all the same as a cassette for a tape recorder, and even more so a much more complex device is a personal computer . By the way, in the same article quite interesting statistics are presented, which indicate that for 2011. RSP planned to raise as much as $ 100 million, but by November of the year only 10-15% of this amount had been collected.

In general, as we see, they took up the RSP tightly. There is no need to be a doctor of law to say: Mikhalkov is far from being so omnipotent and far from being loved in the upper strata as we think. And the problems he has are much more serious than our popular "love." There would be to stay in place at least somehow. Well, you and I should think about something else: will it even come to domain taxes in general? The law is still to be adopted for this. Another thing is that our world is beautiful and great: Mikhalkov will leave - someone else will come. But you still have to live up to this. And you think, willy-nilly, but is it all karma? How would events develop if someone else were in Mikhalkov’s place?

Well, in conclusion, I would like to clarify a little about the domain tax in that moment, which caused the greatest misunderstanding among the Habrovsk citizens in the comments to my previous article. Does domain tax give you the right to host pirated content? The answer here is clear: no. This tax, as well as the "tax on discs," is introduced as a means of paying remuneration for viewing such content. Vasya listened to music on a website, and the copyright holder immediately got into a disastrous situation (carefully, the “irony” tool is used hereinafter) and now he just has to get at least some money for it, otherwise the plague , Incas, a meteorite and generally the end of the world. So they therefore want to introduce a tax, they say, at least a tuft of wool from a black sheep, and since the state considers the state to "fool" the population directly, it’s ineffective in this matter, domain owners will pay specifically, and regardless of what this domain is used for. At the same time, pirates still remain pirates, and no one cancels the beloved article 146 of the Criminal Code of the Russian Federation.

PS Thanks to everyone who added the last article. Thanks to you, I was able to mark it (and this one too) in a more suitable hub - Dura Lex.

It is written specifically for Habr