Is Saas a service or license?
I want to make a small contribution to the discussion about what SaaS is and what provisions of the Civil Code it is regulated. Well, or continue this dispute. In my opinion, SaaS is a license. I have such arguments.
There is an opinion that SaaS differs from a license by one fact: whether the program is installed on a hard disk or accessed remotely. In the case of remote access, there are arguments that it does not refer to the “use” of the Program. Possible options for the use of copyright objects, which include the program, are listed in Part 2 of Article 1270 of the Civil Code. A license agreement is a contract about the right to use the program (Article 1235 of the Civil Code). That is, it turns out that if there is no “use” of the program, then the contract on the basis of which it is used is not a license agreement. And hence the tax consequences due to the need to pay VAT, because payments under a license agreement are exempted from VAT (p.26 clause 2 of article 149 of the Tax Code).
Still, if you look carefully at the list of what is related to the “use” of the program, you can pay attention to subparagraph 5 of paragraph 2 of article 1270: “hire of the original or a copy of the work” A copy is a copy of a work in any material form (clause 1 of Article 1268), but copies of works may also exist in electronic form (Clause 1 of Article 1275). Although paragraph 5 of Article 1270 states that rental does not apply to computer programs, there is an exception: if the program is the main rental object, then such rental is the use of the program. It turns out that if you rent a program (for example, an electronic copy), then you use it, if you use it, then you need a license agreement. Therefore, SaaS can be considered as a rental program, which is based on a license agreement. But payments for rental can only be in a fixed amount (Article 630 of the Civil Code), that is, to tie payments for SaaS on the amount of use of the program in this case will not work.
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Ok, but there is another provision of the Civil Code, namely clause 3 of Article 1270, which states that the practical application of the work is not its use. This argument will justify the fact that the functional use of the program (that is, its use) is not use, and no use — there is no license agreement either. In fact, this provision of Article 1279 of the Civil Code says that a license agreement is needed only to obtain a copy of the program, and to use its license agreement is not needed. This is logical, buying a program on disk, or downloading it from the site, you pay for this program, and not for its use. Therefore, the SaaS agreement must be formulated in such a way as to provide for the provision of the program, and not its application.
Conclusions: SaaS can be considered as a rental of a copy of the program in electronic form. In this case, the SaaS agreement can be considered as a license agreement that allows you to make payments on it without VAT, but payments can only be made in a fixed amount.
It is interesting to discuss the arguments for and against such a position.
There is an opinion that SaaS differs from a license by one fact: whether the program is installed on a hard disk or accessed remotely. In the case of remote access, there are arguments that it does not refer to the “use” of the Program. Possible options for the use of copyright objects, which include the program, are listed in Part 2 of Article 1270 of the Civil Code. A license agreement is a contract about the right to use the program (Article 1235 of the Civil Code). That is, it turns out that if there is no “use” of the program, then the contract on the basis of which it is used is not a license agreement. And hence the tax consequences due to the need to pay VAT, because payments under a license agreement are exempted from VAT (p.26 clause 2 of article 149 of the Tax Code).
Still, if you look carefully at the list of what is related to the “use” of the program, you can pay attention to subparagraph 5 of paragraph 2 of article 1270: “hire of the original or a copy of the work” A copy is a copy of a work in any material form (clause 1 of Article 1268), but copies of works may also exist in electronic form (Clause 1 of Article 1275). Although paragraph 5 of Article 1270 states that rental does not apply to computer programs, there is an exception: if the program is the main rental object, then such rental is the use of the program. It turns out that if you rent a program (for example, an electronic copy), then you use it, if you use it, then you need a license agreement. Therefore, SaaS can be considered as a rental program, which is based on a license agreement. But payments for rental can only be in a fixed amount (Article 630 of the Civil Code), that is, to tie payments for SaaS on the amount of use of the program in this case will not work.
')
Ok, but there is another provision of the Civil Code, namely clause 3 of Article 1270, which states that the practical application of the work is not its use. This argument will justify the fact that the functional use of the program (that is, its use) is not use, and no use — there is no license agreement either. In fact, this provision of Article 1279 of the Civil Code says that a license agreement is needed only to obtain a copy of the program, and to use its license agreement is not needed. This is logical, buying a program on disk, or downloading it from the site, you pay for this program, and not for its use. Therefore, the SaaS agreement must be formulated in such a way as to provide for the provision of the program, and not its application.
Conclusions: SaaS can be considered as a rental of a copy of the program in electronic form. In this case, the SaaS agreement can be considered as a license agreement that allows you to make payments on it without VAT, but payments can only be made in a fixed amount.
It is interesting to discuss the arguments for and against such a position.
Source: https://habr.com/ru/post/307298/
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