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

Placing yesterday's article combining the analysis of Mikhalkov's “old” tax “on equipment and disks” and the new one on websites, I realized that this is not enough for full coverage of the situation. In addition, comments to 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 no one of the officials gave a detailed explanation of it. Let's try to analyze the tax “on carriers” and find out what is wrong with it, what it is based on and what awaits it in the future, and also find out if the RSP lives well, as many people think.

So, what do we know about the Russian Union of owners? According to the charter, this “office” has the status of the All-Russian public organization, that is, non-profit persons (non-profit persons differ from commercial ones in that they do not set a goal to make a profit, although nobody interferes with receiving money). The president of the union is Nikita Mikhalkov, the vice-president is Bashmet Yury Abramovich. The RSP board includes such personalities as Sergey Bezrukov, Makovetsky, Rastorguev, Stoyanov and others. According to the RSP charter, the main subject of its activities is the management of rights on a collective basis and assistance to right holders in the implementation and protection of their intellectual rights on a contractual basis. And in clause 1.2 of the RSP charter (at least in the version laid out on their website) it is clearly stated that “the Organization operates in the territory of more than half of the constituent entities of the Russian Federation and has a national status” It is logical to assume that if the Organization for any reason loses part of its representative offices and works on the territory of less than half of the subjects, then its activities will become illegal.

Important detail

However, the charter is just an internal document. He has no right to act on behalf of all rightholders in the territory of the Russian Federation (even those with whom an agreement has not been concluded), and even more so he does not collect any mandatory contributions. The secret of "success" lies in article 1244 of the Civil Code of the Russian Federation, where it is stated that an organization for managing rights on a collective basis (such, I remind you, is the RSP) can receive state accreditation to carry out activities. The same article states that accreditation is given in various fields. Specifically RSP works in the field of protection of 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 it “by default”, without concluding contracts . Our favorite is not less Mikhalkov RAO also has accreditation. Now you understand how much this place is bread? 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 (if abbreviated: Federal Penitentiary Service or, in the old manner, RosOchranCulture ).
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Here is another interesting point: although the RSP protects the rights of all rightholders in the territory of the Russian Federation, even foreign ones, it is still possible to refuse its services, both fully and partially (in respect of certain objects of copyright and related rights). Provides it all the same article 1244 of the Civil Code.

On the merits

And now let's switch to the actual tax. 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 solely for personal purposes, and this remuneration is paid at the expense of funds that are paid by manufacturers and importers of equipment and material carriers, used for such reproduction. The list of such equipment is established by the annexes to the decree "On remuneration for free reproduction of phonograms and audiovisual works for personal purposes" dated October 14, 2010 N 829. (among the equipment you can find, among other things, such funny items as "computer keyboards", " Reel tape recorders "," Unrecorded semiconductor carriers "and much more). Also in the appendix it is indicated that the funds for the payment of remuneration are not paid by importers of professional equipment not intended for use at home - this point could theoretically become a stumbling block between RSP and telephone manufacturers, though much depends on a specific court decision, because on the other hand then these phones are intended for home use and are intended, and therefore Samsung will have to spin (more on this later).

Let's try to decide on the status of this tax. First of all, let's clarify right away: although I, and most other sources, call it that way, in fact, it is not legally a tax . This is exactly the reward. Is it mandatory? On this account yesterday, stas_agarkov sent me a rather interesting article where the author tries to prove that it is not necessary to pay this fee. The author of the article is trying to explain to us that paragraph 5 of Resolution No. 829 (in fact, it was not the decision itself, but the annex to it) that the obligation to pay arises after signing the contract between the payer and the RSP, but the duty to enter into the contract can only be established by federal law . Alas, it is difficult to call such a justification 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 of payment actually arises on the basis of the Civil Code of the Russian Federation (that very article 1245), and the resolution only regulates it, in particular, establishes the amount and procedure for payment. The basis for payment of funds specified in clause 5 of the annex is just a line of text in the payment order, a justification for the payment and a letter for tax. However, this is just my interpretation of the law. The court may always have a completely opposite opinion.

The essence of the matter

And since I again started talking about the courts, let's consider a completely different option, which will help not pay RSP. As I wrote last time, Mikhalkov, with his “tax”, is far from being as colorful as it appeared in the project: not everyone pays, and they are threatened to take away the right to collect. But it turns out that CPRs can deprive accreditation at all. Still, no matter what, he takes a pretty good place, and the opportunity to share is not even provided by law, so the “competitors” look at Mikhalkov, and they are looking for a way to get close. The first bird arrived at the beginning of last year: on January 25, at the Moscow Arbitration Court, the Russian Society for Related Rights (ROSP), one of the main competitors of the RSP, succeeded in canceling the accreditation of the Mikhalkov organization, which they did not hesitate to place a voluminous article on their website. However, as we know, the RSP still operates. This is due to the fact that the Ninth Arbitration Court of Appeal of Moscow still canceled the decision of the lower court. By the way, in addition to suits, RSPP is trying to influence the CPR and through the media. Several materials on the body and radio channels, they have already pushed .

But the courts did not end there. The blow was dealt from a completely different side. On March 2 of this year, the Akushinsky District Court of the Republic of Dagestan, on the basis of the claim of Kurbanmagomedov M.S., declared illegal the registration of the RSP organization in the Ministry of Justice. The reason for the decision was the fact that, in accordance with the Civil Code, only authors, performers and producers of phonograms, etc., have the right to receive remuneration for the use of copyright, and there are practically no rightholders among the founders of the RSP. According to the Register, at the time of registration on December 21, 2009, 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 were the founders of the RSP. As we see, authors and large firms owning intellectual property rights are really not among them. 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 judicial system in Russia assumes that the decision of any court, even the smallest, if it has entered into legal force and has not been challenged, is unshakable and subject to enforcement throughout the country. A world judge Ivanov Ivan Ivanovich admitted that he was a goat, which means that he is a goat, and we will write it down in the passport (we immediately recall my footnotes on the text: even with the most precise substantiation of the issue, the judge can always have a completely alternative opinion, and therefore may be deemed illegal, and phones called professional equipment). It doesn’t matter that some commission later finds that the judge was in a state of severe alcoholic intoxication. The judge will be scolded, dismissed, but the decision will not be canceled (in this regard, Ivanov has only one loophole - to write to the court according to newly discovered circumstances, but this is already a topic for another conversation). And therefore, the Akushinsky District Court, and the Elista City Court, however distant they may seem to us, may well affect the activity of the RSP throughout Russia, the main thing is that their decision should not be quashed by the higher courts , and there is still time for that.

Word to the government

There are, however, Mikhalkov and 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 rate of the author's fee from manufacturers and importers of audio and video equipment and storage media. In fact, the idea is to reduce the rate for a number of products, and leave the notorious 1% only for a specific 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 consumer player is not at all the same as a cassette for a tape recorder, and even more so a more complex device is a personal computer. . By the way, quite interesting statistics are presented in the same article, in which it is indicated that for 2011. RSP planned to collect as much as $ 100 million, but by November only 10-15% of this amount had been collected.

In general, as we see, they took up the RSP firmly. There is no need to be a doctor of law in order to say: Mikhalkov is far from being so omnipotent and not so much loved in the higher strata, as we think. And the problems he has are much more serious than our nationwide "love." There would be in place to stay at least somehow. Well, you and I should think about the other: does the matter come to the domain tax at all? The law for this is still necessary to accept. Another thing is that our world is beautiful and great: Mikhalkov will leave - someone else will come. But before that, still need to live. And willy-nilly, you wonder if it is all karma? How would events develop if there was someone else in the place of Mikhalkov?

Well, in conclusion, I would like to clarify a little about the domain tax in that moment, which caused the greatest misunderstanding of habrovchan in the comments to my previous article. Does the domain tax give the right to post pirated content? The answer is unequivocal: no. This tax, like the “tax on blanks,” is introduced as a means of paying remuneration for viewing such content. Vasya listened to music on some website, and the copyright holder immediately got into trouble because of this (carefully, the “irony” tool is used here and later) and now he just has to get at least some money, otherwise the plague , Inca, meteorite and generally the end of the world. That’s why they want to impose a tax, say, from a black sheep, even if it’s a shred of wool, and since it considers the state to be ineffective to “fool” the population of the country directly, the domain owners will pay specifically, 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 to the previous article. Thanks to you, I was able to mark it (and this one too) in a more suitable hub for this - Dura Lex.

Written specifically for Habr