How does the use of programs differ from their use?
One of the essential conditions of a software license agreement is an indication of the permitted ways to use it. In this case, we are not talking about the description of the functionality or the order of application of programs for the intended purpose, as is often the case in many licensing agreements. The latter is particularly evident in the example of licensing agreements for the use of Internet services on the SaaS model.
Since the licensing agreement is aimed at granting the right to use, the absence in it of an indication of methods of use compliant with the requirements of the law or their replacement by fictitious means automatically entails the possibility of recognizing such an agreement as not concluded.
In this case, there also arise tax risks of refusing to apply the VAT exemption granted to companies on the general taxation system under software licensing agreements on the basis of paragraphs.26 of paragraph 2 of Article 149 of the Tax Code of the Russian Federation. See explanations under the cut.
Copyright regulates the circulation of copies of works, including software. Therefore, by legal means of using the software one should understand only actions aimed at transferring their copies to third parties. The extraction of useful properties of software within the use of its copy does not apply to the law of use.
')
The main ways of using the works are listed in article 1270 of the Civil Code of the Russian Federation. Among them, the ways to use the software include the following:
The list of ways to use software is set forth in art. 1270 of the Civil Code of the Russian Federation, i.e. legislation does not exclude the possibility of the existence of other methods. However, such methods should relate directly to the transfer of instances of software, rather than the practical implementation of the functionality embedded in them, as we have clearly illustrated above.
Thus, the use of programs according to their functional purpose, the adaptation of programs by means of their adjustment with the use of inherent internal capabilities do not relate to use. Consequently, remote access to software and various cloud services based on it also cannot be considered as a method permitted by law under its licensing agreement.
Formulate the terms of the license agreement correctly. Then tax breaks can be used without unnecessary risks.
Since the licensing agreement is aimed at granting the right to use, the absence in it of an indication of methods of use compliant with the requirements of the law or their replacement by fictitious means automatically entails the possibility of recognizing such an agreement as not concluded.
In this case, there also arise tax risks of refusing to apply the VAT exemption granted to companies on the general taxation system under software licensing agreements on the basis of paragraphs.26 of paragraph 2 of Article 149 of the Tax Code of the Russian Federation. See explanations under the cut.
Copyright regulates the circulation of copies of works, including software. Therefore, by legal means of using the software one should understand only actions aimed at transferring their copies to third parties. The extraction of useful properties of software within the use of its copy does not apply to the law of use.
')
The main ways of using the works are listed in article 1270 of the Civil Code of the Russian Federation. Among them, the ways to use the software include the following:
- software playback , i.e. there is the production of one or more copies of the software or its parts in any material form, including recording in the computer memory;
- software distribution by selling or otherwise alienating its copies;
- public display of software , that is, any demonstration of a copy of software on the screen using a television frame or other technical means in a place open to free visits, or in a place where there is a significant number of persons not belonging to the ordinary family, regardless of what is perceived Software in the place of its demonstration or in another place simultaneously with the demonstration of software;
- import of software copies for distribution;
- rental of a copy of the software when the program is the main object of rental;
- software modification , i.e. any changes to it, including the translation of such a program or such database from one language to another language, except for adaptation, that is, making changes that are carried out exclusively for the functioning of a computer program or database on specific technical means of the user or under control of user programs;
- bringing the software to the public in such a way that any person can access the software from any place and at any time of his choice (bringing to the public), i.e. transfer of the instance over the Internet.
The list of ways to use software is set forth in art. 1270 of the Civil Code of the Russian Federation, i.e. legislation does not exclude the possibility of the existence of other methods. However, such methods should relate directly to the transfer of instances of software, rather than the practical implementation of the functionality embedded in them, as we have clearly illustrated above.
Thus, the use of programs according to their functional purpose, the adaptation of programs by means of their adjustment with the use of inherent internal capabilities do not relate to use. Consequently, remote access to software and various cloud services based on it also cannot be considered as a method permitted by law under its licensing agreement.
Formulate the terms of the license agreement correctly. Then tax breaks can be used without unnecessary risks.
Source: https://habr.com/ru/post/290788/
All Articles