In May of this year, the President of the RF signed a decree according to which Russian companies can fulfill obligations to some copyright holders from unfriendly states in rubles when using a special account of the "O" type opened in an authorized bank.
The decree does not apply to copyright holders with foreign participation who properly fulfill their obligations to Russian counterparties. At the same time, Russian banks began to unreasonably refuse to transfer funds in favor of copyright holders and Western offices of Russian majors. In order to eliminate the issues that arose in connection with the application of the Decree, NFMI, together with other industry associations of copyright holders, sent a request to the Ministry of Economic Development of Russia for clarification.
Explanations of the Ministry have been received by NFMI, the main provisions:
- The Decree applies not only to foreign copyright holders, but also to Russian copyright holders who meet the criteria of the Decree.
- The Decree applies only to settlements with:
- copyright holders (i.e. only with those persons who own the exclusive right to the intellectual property object as a whole);
- with licensees (sublicensees) or distributors, if these persons are foreign persons, and the exclusive right to an intellectual property object belongs to the copyright holder who meets at least one of the criteria of the Decree.
In other cases, the provisions of the Decree do not apply. In particular, the provisions of the Decree cannot be applied to settlements with licensees (sublicensees) or distributors if such persons are Russian persons. This means, for example, that the provisions of the Decree do not apply in settlements between the Russian offices of NFMI members and their licensees, except in the case when a Russian legal entity (Russian office) owns the exclusive right to a musical work (video clip, phonogram) in full and such a Russian legal entity meets at least one criterion from the Decree.
- The Decree does not imply the prolongation of contracts or the legalization of non-contractual use. For example, it is impossible to use any intellectual property object without a contract with the copyright holder and then pay for such use according to the rules of the Decree.
- The decision to open a special account of type "O" can only be made by the debtor (payer) under the transaction. At the same time, even if the copyright holder meets the criteria from the Decree, the payer can still make the payment in the usual manner, if the account "O" was not opened earlier.
- The Decree applies to mixed transactions. For example, if one transaction provides for both a license and the provision of services, the rules of the Decree apply to those monetary obligations that arise from the obligation to grant a license, provided that there are general grounds for applying the provisions of the Decree.
- Clarifications exclude blocking payments by banks if, in the opinion of the payer, the rightholder does not fall under the Decree. At the same time, the payer is not obliged to prove to the bank that the rightholder has properly fulfilled its obligations.
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