More recently, we wrote
about amendments to article 1273 of the Civil Code, which regulates the so-called “right to copy at home”. 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, on the sixth day, it became known that the Federal Service for the Supervision of Compliance with 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 will talk about this reward today.
" Piracy Tax
As you know from the previous article, article 1273 allows copying legally published works for
personal purposes ( with the exception of computer programs
). But as conceived by the legislator, right holders should somehow receive compensation for this. Therefore, there is another article in the code, 1245
, which states that deductions should be paid to copyright holders for “home copying”. This responsibility is imposed on manufacturers and importers of equipment and storage media, which, in turn, include this money in the price of goods.
Paying for everything, ultimately, the buyer. One can argue about the legality of such an approach to the collection of deductions. Increasingly, there are calls to replace this fee with “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 in the next twenty years Russia, such a prospect is not exactly threatened, so we will have to live with the legislation that exists.
Unfortunately, a certain amount of misconceptions is associated with “ home copying
”: under the influence of the domestic press, many believe that article 1273 allows only “ licensed content
” to be copied, and that files uploaded by “pirates” do not fall under this permission. This is not true: the law requires that the work be " legally publicized
." And under the “ promulgation
” refers to any actions that make the work accessible to the unlimited circle of persons.
However, relatively recently, supporters of this misconception have a weighty argument: the last decree of the plenary sessions of the Supreme and Supreme Arbitration Courts " On some issues arising in connection with the introduction of part four of the Civil Code of the Russian Federation
." In particular, it says: “When applying Article 1273 of the Civil Code of the Russian Federation, the courts should take into account: reproduction, that is, making one copy of a work or more or part of it in any material form, does not constitute a violation of the exclusive rights to work only if at the time of making such an instance, the work itself is legitimately used. Thus, a violation of the exclusive right to a work is the production of one copy of a work or more, carried out from a counterfeit copy or when unlawfully communicated to the public (including unauthorized posting 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: the “promulgation” of article 1273 is replaced by “use”. In fact, instead of interpreting the courts, they took up rule-making and invented a new rule of law, exceeding their authority.
The meaning of deductions from discs is that they are paid from each blank disk, regardless of which disk or file is copied to this “disc”, “licensed” or “pirated”. That is why the legislator has allowed copying “legally published” and not “legally used” works. Dumps "from discs" are designed to compensate the right holders for lost profits due to the "legalization" of copies of works that are used for personal purposes and do not participate in civilian circulation, regardless of the source of such a copy.
As a rule, in the domestic press, a series of publications about the "prohibition of downloading" arise "based on" foreign persecutions of users of torrents. But, if you carefully study the western sources, then they almost always talk 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, it is not. But the more often it will be written there that “copying was banned”, the closer the moment when police officers will really start checking other players on the streets ...Government breaks records
At the end of September, Rosokhrankultura held a meeting of the accreditation commission, at which it was determined which of the two applicants to entrust the collection of this money. Two organizations claimed the role of a collector: the Russian Union of Rights Holders, created with the direct participation of RAO, specifically “under accreditation”, and the Russian Society for Related Rights (ROSP).
However, later Rosokhrankultura refused to identify the authorized organization. The reason for this was the absence of regulatory documents that determine the procedure for paying such a remuneration and its rate.
The history of these documents began with the adoption of the old law “On Copyright and Related Rights”, which provided for such fees. However, in fact, they did not intend to: everything came up against the by-laws on the collection procedure and its rates. Or rather, in their absence ... The government should have developed and adopted them 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-starred documents within three months. This was not done - neither in a three-month period, nor in three years. All this ended with a letter from the Federal Customs Service, stating that, since there is no such order, the equipment and carriers from which deductions should be taken can be imported, and so - but only by giving a preliminary promise to pay this fee. The temporary order has become permanent since the necessary regulations are still missing.
Not so long ago, we published a brief review of
broken deadlines of ministries in the transition to electronic public services. The record holder of that post lasted only a year. Of course, the Government, which for seventeen years cannot determine the procedure for making fees "from discs," cannot be compared ... But, apparently, the necessary decisions will soon be adopted, and the actual collection of these deductions will begin. Then users will have the full right to wonder about what they are paying money for.