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Articles

The payment of the remuneration for the free reproduction of audiovisual works for the private purposes

October 22,2018

Since 2010, in Russia there has been a legal norm obliging the manufacturers and importers of the
equipment and material media to pay the remuneration for the free reproduction of audiovisual works for
the private purposes.
It is worth noting that such payments are also collected in other states. The remuneration essence is that
the right holder should receive the remuneration for the private use of an audiovisual work. The amount
set shall be paid by direct users indirectly: it is added to the value of the equipment or material media, by
which the audiovisual works are reproduced. The direct responsibility for the payment of the
remuneration shall rest with the manufacturers and importers of the equipment and material media.
The world practice of collecting payments for the use of works for the private purposes
In the foreign legislation there is not a unified scheme for paying the remuneration for the reproduction of
audiovisual objects for the private purposes. For example, in Luxembourg and Australia, the fees for the
free use of a private nature are not collected. In Sweden, Romania and Belgium, in addition to the
manufacturers and importers, the wholesalers are among the payers. In a number of countries there are
fixed payments, the amount of which is regularly revised (France, Hungary, Germany), while in other
countries the remuneration is set in the amount of the interest rate from the selling price (Japan, Poland,
Greece and others). 1
The legislative regulation of collecting payments for the free reproduction in the Russian
Federation
In Russia, the provisions on the payment of the remuneration for the use for the private purposes for the
first time were legally enshrined in Article 26 of Law of the Russian Federation of 09.07.1993 No. 5351-1
“On Copyright and Related Rights.” This norm has lost its force after the introduction of Part 4 of the
Civil Code of the Russian Federation. Article 1245 of the current Civil Code of the Russian Federation
duplicates the provisions, which have been in force previously.
Having analyzed the legislative norm, the following can be identified:
• The subjects who are entitled to receive the remuneration. They are the authors, performers and
manufacturers of phonograms and audiovisual works.
• The persons whom the payments are collected from. These are the manufacturers and importers of the
equipment and material media used for the reproduction of a private nature.
• The exceptions with respect to the objects for the implementation of which the fees are not collected.
These include the equipment and material media manufactured for the export purposes and the
professional equipment.
The provisions of Article 1245 of the Civil Code of the Russian Federation have not been applied till
2010, when the Government of the Russian Federation issued Resolution No. 829 “On the Remuneration
for the Free Reproduction of Phonograms and Audiovisual Works for the Private Purposes.” The
provisions of the said legal act contain:
• the amount of the remuneration paid;• the list of the equipment and material media, for which the payments shall be paid;
• the procedure for collecting the remuneration.
The organization authorized to collect the remuneration for the reproduction of audiovisual works
for the private purposes
According to Paragraph 2 of Article 1245 of the Civil Code of the Russian Federation: “The collection of
funds for the payment of the remuneration for the free reproduction of phonograms and audiovisual works
for the private purposes shall be implemented by an accredited organization.”
The only structure authorized to collect the said payments is the All-Russian Social Organization the
Russian Union of Right Holders (hereinafter referred to as the “RURH”). In 2010, according to Order of
the Federal Service for the Supervision of the Observance of the Legislation in the Field of Protection of
the Cultural Heritage of September 24, 2010, No. 167, the RURH received the state accreditation for
exercising authority for collecting the remuneration for the reproduction for the private purposes. In 2015,
by Order of the Ministry of Culture of the Russian Federation No. 2440 of September 18, 2015, the
accreditation of the Union was extended for 10 years.
The amount of the payments and the distribution of the funds received
There are two ways of calculating the amount of the remuneration payable:
• A fixed amount payable shall be set;
• The manufacturers and importers shall pay a certain percentage of the selling price or the import price of
the equipment and material media.
In Russia, the percentage method of calculating the necessary payments is used. According to Paragraph 1
of Article 1245 of the Civil Code of the Russian Federation, the procedure for collecting the remuneration
and its amount shall be set by the Resolution of the Government of the Russian Federation. The current
interest rate is 1% of the total value of the equipment or the material medium, which can be used for the
reproduction of audiovisual works for the private purposes.
Paragraph 3 of Article 1245 of the Civil Code of the Russian Federation shall set the following percentage
distribution of the paid remuneration with respect to audiovisual works:
• 40% – to the authors of the audiovisual works,
• 30% – to the performers, whose performance is recorded in the audiovisual works,
• 30% – to the manufacturers of the audiovisual works.
The development of the institution of payment of the remuneration for the reproduction of
audiovisual objects for the private purposes
According to the annual report of the RUSH, in 2016 the amount of the remuneration collected was
2,680,749 roubles. In 2010, when the Union was established, such amount was 38,099 roubles. 2 The
increase in the payments received is due to the increase in the number of the agreements concluded
between the RURH and the right holders and the agreements concluded between the RURH and the
remuneration payers. The identified trend indicates that each year the number of the right holders who
implement their right to the remuneration for the reproduction for the private purposes is increasing.

It should be noted that simultaneously with the beginning of the collection of the payments the attempts to
strike down the operation of the acts, which provide such a possibility, have also appeared. The last
initiative found its expression in the draft law submitted for consideration by the State Duma Council on
March 26, 2018. The Member of the State Duma Committee upon the State Construction and the
Legislation Sergei Ivanov came up with a proposal to strike down the compensatory payments for the free
reproduction for the private purposes, arguing that the users paid the remuneration to the right holders of
the audiovisual works, when they acquired them, and there was no need to pay again. Thus, there is a
possibility of striking down the payments of the remuneration for the free reproduction for the private
purposes. 3

 

Bibliography:

1 See the details: Kovtun E.V., Kovalenko E.V. The system for collecting and paying the remuneration to right holders for the
free reproduction of phonograms and audiovisual works for the private purposes: problems and prospects 

2 The RUSH Report for 2016 

3 “Tax on Blanks” can be struck down // the Parliamentary Newspaper of 26.03.2018

Автор материала

Sergey Zuykov
Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney