Russian constitutional court decided whether Russian private copying levy is in accordance with Russian constitution
In its complaint to Constitutional court of Russian Federation “Nokia” ltd. asked the court to admit as contradicted to Constitution of Russian Federation, including to article 4 (part 2), 6 (part 2), 8, 15 (part 1), 19 (parts 1 and 2), 34 (part 1), 55 part 3) and 115 (part 1), a following legal provisions:
item 1 of article 1245 “Remuneration for free reproduction of phonograms and audiovisual works for private purposes” of Russian Civil code;
List of equipment and mediums, using for free reproduction of phonograms and audiovisual works for private purposes, with determination of applicable rates paying by importers of such equipment and mediums (in relation to part, which includes cell telephones and determines applicable rates (1%) from declared customs value for one unit of equipment or medium);
items 4 and 6 of “Procedure about payment for free reproduction of phonograms and audio-visual works for private purposes by importers of equipment and mediums used for such reproduction” approved by governmental decree #829 14.10.2010 “About remuneration for free reproduction of phonograms and audiovisual works for private purposes” (in relation to part, which prescribes that payment of remuneration is to be made by importer (custom applicant) and must be calculated by way of multiplication of levy rate by unit’s custom value and then by quantity of imported equipment and/or mediums).
According to item 1 article 1245 of Russian Civil Code authors, performers, producers of phonograms and audiovisual works have the right to receive remuneration for free reproduction of phonograms and audio-visual works only for private purposes; such remuneration has compensatory character and is to be paid to right holders from moneys paid by manufacturers and importers of equipment and material mediums; list of equipment and mediums, applicable rates and procedures, prescribing how to collect relevant remuneration are to be adopted by Government of Russian Federation. This legal regulation has been made by federal legislator within the scope of its discretion in order to execute direct instruction containing in article 44 (part 1) of Russian Constitution and it cannot be regarded as infringing constitutional rights and freedoms of claimant, stated in complaint.
In item 1 article 1245 of Russian Civil Code legislator has secured common principles and regime for protection of right holders’ material interests in a case of reproduction of phonograms and audiovisual works for private purposes, it means that a federal legislator, regulating relationships on payments to right holders by importers and manufacturers of equipment and mediums used for private copying, authorised the Government of Russian Federation to determine list of taxable equipment and mediums, applicable rates and payment procedure for private copying levy.
Constitutional Court of Russian Federation repeatedly mentioned that in accordance with provisions of article 114 (item “e” part 1) and article 115 (part 1) of Russian Constitution (Resolution #15-П, 22.11.2001, Decision #283-O 10.12.2002 and others) Russian Government has authority to ensure the rights and freedoms of citizens, to protect a property (therefore, also to protect and safeguard an intellectual property) by virtue of principle to separate state powers (executive power, legislature, judicative authority under article 10 of Russian Constitution), under which the function of lawmaking is executed by Federal Assembly and the executive power belongs to Russian Government.
In accordance with article 125 of Russian Constitution and article 3 of Federal constitutional law “About constitutional court of Russian Federation” where the scope of Constitutional court’s authority is clearly determined, the Russian constitutional Court does not have authority to evaluate economic rationality of Russian Government’s decision to determine applicable rates of private copying levy for free reproduction of phonograms and audio-visual works for private purposes based on unit’s declared customs value of equipment (including cell telephones) and mediums.
Constitutional court of Russian Federation examined all provided materials and did not find any reason to consider filed complaint.