In accordance with Article 174 of the Act on Copyright and Related Rights (Official Gazette of RS, no. 104/09, 99/11 and 119/12, hereinafter Law),
Organization og Phonogram Producers of Serbia ‘OFPS’, form Belgrade, Masarikova 5/19,
And
Organization for Collective Management of Preeformer Rights ‘PI’, from Belgrade, Majke Jevrosime 38,
(hereinafter: Collective Organizations) on one side
and
Association of Independent Electronic Media ‘ANEM’, from Belgrade, Takovska 9, on the other
are on 21.02.2014 concluding in Belgrade
AGREEMENT ON
UNIQUE REMUNERATION TARIFF FOR BROADCASTING OF PHONOGRAMS AND RECORDED INTERPRETATIONS ON THEM
Preliminary Provisions
Article 1
This Agreement on unique remuneration tariff for broadcasting of phonograms and recorded interpretations on them (hereinafter: Tariff) determines the amount, method of calculation and remuneration collection within the time in which the user, by law, is under obligation to pay remuneration for a specific exploitation of subject under protection, which is the repertoire of collective organizations.
Collective organizations are legal entities, authorized to in their own name and on behalf of related rights holder collect remuneration for a specific exploitation of subject of protection which is the right holder’s repertoire, in accordance with the Law and provisions of this Tariff.
Article 2
Remuneration is collected from users in accordance with this Tariff, and the provisions of Articles 117 and 127 and other Articles of the Law.
MEANING OF CERTAIN TERMS
Article 3
Terms used in the Tariff have the following meanings:
Terms interpretation, phonogram producer and phonogram are defined by law.
Remuneration, in accordance with this Tariff, is considered as a unique remuneration for the phonogram producer and the interpreter, in accordance with domestic and international regulations.
Repertoire of collective organizations consists of phonograms with interpretations recorded on sound carriers of all domestic and foreign right holders, in accordance with Article 180 of the Law.
Subject of protection in accordance with this Tariff is equated with the repertoire of collective organizations.
User is a legal or physical entity which, on the territory of the Republic of Serbia, in performing registered business, uses the repertoire by broadcasting of phonograms, interpretations, via radio, TV, their electronic and internet publications, as well as program content available on request via networks of electronic communications.
Revenue in accordance with this Tariff represents the total income funds the user accomplished based on broadcast activities (e.g. income from sale of advertisement time and space, repertoire exploitation and the like) without any reductions.
Expense in accordance to this Tariff represents the sum of all expenses made by the user in performing activities of using the repertoire, regardless of them being paid.
Radio of the complete program is the radio which in prime time broadcasts info, educational, cultural, scientific, sport and entertaining contents.
Entertainment radio is the radio which in prime time broadcasts entertaining contents with repertoire participation in program from 50% to 75%.
Music radio is the radio which in prime time broadcasts entertaining contents with repertoire participation in program over 75%.
Service zone of coverage is the zone of coverage of a specific broadcaster which is calculated based on data received from the regulatory board for electronic communications, and at the request of the broadcaster, or other document which in a credible manner confirms the service zone of coverage.
Collective organization which collects revenues is the organization which collects unique remuneration for phonogram producers and interpreters, based on the written agreement between the organization of phonogram producers and organization of interpreters.
Minimal remuneration in accordance with the Tariff is the lowest amount of remuneration for exploitation of the subject of protection from the organization repertoire.
Article 4
Use of the repertoire includes broadcasting of phonograms, i.e. interpretations via radio, TV, their internet publications, as well as the program content available at the request via networks of electronic communications.
“Download” is not included as use of repertoire via internet in accordance with this Tariff and is subject to a special agreement between the right holder and the user.
OBLIGATIONS OF THE REPERTOIRE USER
Article 5
Users of phonograms, i.e. interpretations, are under obligation:
1)To fulfill their obligation of paying remuneration for use of repertoire in accordance with Articles 117 and 127 of the Law and provisions of this Tariff;
2)To inform the collective organization which collects income from users on a regular basis of all facts that are relevant for calculation of remuneration which is paid toward and in accordance with this Tariff;
3)in case of a dispute on the amount to be paid to the collective organization which collects income from users, remuneration amount stipulated by this Tariff, in the special manner that is noted to them, from which funds are distributed to right holders until dispute settlement;
4)users are under obligation to enable insight ofall documents, to authorized personnel of the organization which collects remuneration, within the control process of use of subject of protection, which is related to revenues from broadcasting and are relevant for remuneration calculation which is paid as per Tariff, in accordance to Article 187 Paragraph 6 of the Law.
Article 6
Collective organization collecting funds from use of the subject of protection, can conclude and agreement to regulate mutual rights and obligations with each one of the users for the use of the subject of protection from the collective organization repertoire and remuneration payment for the same.
All users of the repertoire are under obligation to pay fees stipulated in this Tariff, regardless of whether they have concluded with the organization an agreement from the previous paragraph.
JOINT LIABILITY OF THIRD PARTIES
Article 7
Parties that have been noted in Article 187 Paragraph 7 of the Act on Copyright and Related Rights are liable for obligations of the repertoire users.
REMUNERATION CALCULATION
General Provisions
Article 8
User is under obligation to pay fees within 14 days from receiving the invoice.
In the case invoice delivery by registered mail according to law regulating postal services was unsuccessful to the posting address, i.e. to the head office address of the society in case there is no posting address, it shall be considered that delivery was successful upon 14 days of the second delivery, provided that there were 15 days between the two deliveries and that the collective organization has informed the broadcaster of the second delivery by electronic means.
In the case user has a concluded agreement with the organization which collects unique remuneration and if within the agreed timeliness:
- submits true data relevant for remuneration calculation;
- submits true data on broadcast repertoire in the manner stipulated by acts of the collective organizations;
- pays remuneration in whole based on the invoice of the collective organization which collects funds or in accordance with agreement on the manner and dynamics of settlement of due receivables;
a discount of 15% is allowed for the calculated remuneration after the final calculation for the year of the concluded agreement.
In the case user does not submit true data on acquired income in accordance with this Tariff, which are necessary for calculating remuneration, remuneration is calculated at double the amount.
Collective organization which collects unique remuneration retains the rights to calculate and charge from the user default interest for late payments, in accordance with current regulations of the Republic of Serbia.
Remuneration calculation in cases of percentage implementation of income, i.e. of expenses
Article 9
In cases remuneration is determined in percentages, remuneration is determined in percentage of income the user acquires in performing activity within which they exploit the subject of protection, provided that if user does not generate income, it is determined in percentages from expenses of the user necessary for performing activities within which they exploit the subject of protection.
Article 10
If it is not otherwise stipulated by this Tariff, basis for remuneration calculation is the total amount from broadcasting.
Income from broadcasting does not include:
1) incomes which user generates from funds acquired from public call for Project proposals which are aimed at achieving public interest in fields of public information, in accordance with the law regulating public information, or income which user generates based on projects supported by domestic or foreign donators;
2) incomes which user generates based on publication sales;
3) other income that are not related to broadcasting (renting broadcasting facilities etc.).
User incomes generated based on sale of advertisement time and sponsorship, for the purpose of calculating the base for remuneration calculation is reduced for 10% based on marketing expenses.
Condition for reduction as per previous paragraph is that users submit proof of expenses in engaging marketing agencies, i.e. submit a statement clearly and unambiguously that they had marketing expenses, no later than the April 15th of the current year for the previous year. Income is not reduced for 10% based on marketing expenses when calculating the base for remuneration calculationif the user does not present marketing expenses, i.e. does not submit a statement for marketing expenses.
In case user does not generate income, as base for remuneration calculation is the expense the user has in performing activities within which he exploits then repertoire.
Remuneration is calculated by implementing percentages to thee base closely explained in Paragraphs 1, 2, 3, 4 and 5 of this Article, and per relevant Tariff number.
Article 11
Remuneration determined in Articles 9 and 10 of this Tariff is paid as advance monthly payments until the final annual percentage calculation of income, i.e. user expense or implementation of the minimal remuneration.
Amount of monthly advance payments for users who use the repertoire of the collective organizations is determined based on the final calculation for the previous year.
Article 12
User is under obligation to submit data on income with separated basis of acquisition, until the 15th of the month for the previous month, as well as to submit Income Statement for the previous year no later than April 15th of the current year, certified by the competent state authority. Beside the Income Statement, user is under obligation to submit relevant financial and other documents which credibly allow determining the basis for remuneration calculation. If the user does not submit the annual Income Statement for the previous year within the time limit, organization which collects funds from users is under obligation to request from the user, in writing, to submit the Income Statement within 15 days from receiving the request.
In case user does not submit Annual Income Statement for the previous year even after expiration of the time limit prescribed in the call, collective organization which collects remuneration shall determine the final annual remuneration calculation implementing data from financial reports that are publically available, from the website of the Serbian Business Registers Agency, National Bank of Serbia and other state authorities.
If the user does not differentiate income to radio and TV, collective organization which collects remuneration shall independently divide the income in ratio of 5% income per radio and 95% income per TV.
Article 13
Percentage is determined based on repertoire representation in regard to total program duration and type of radio stations in accordance with tariff number 1 of this Tariff.
Once a month, until the 15th of the month, user is under obligation to submit, to the collective organization which collects funds, list of broadcast subjects of protection in accordance with general acts on registering broadcast subjects of protection of collective organizations.
Users determine themselves and inform the collective organization which collects funds to which classification of repertoire representation, i.e. to which type of radio stations they belong to.
Users are under obligation to submit notification for the current year, by January 31st, on classification of repertoire representation, i.e. type of radio station. Notification on percentage of music repertoire representation user submits, is subject to determining and control by the collective organization which collects funds by analyzing lists of broadcast subjects of protection as well as by monitoring.
In case user does not submit classification by January 31st, collective organization which collects funds shall determine which classification user belongs to, based on submitted lists of broadcast subjects of protection from the previous year and determine the average per annum.
During the current year user may inform the collective organization which collects fund that it is passing to another classification of repertoire representation.
If the user does not submit lists of broadcast subjects of protection in accordance with general acts of collective organizations regarding registration of broadcast subjects of protection, and if, 15 days from receipt of notification, provided that he was also notified by electronic means of the sent notification, does not submit the lists, the organization which collects funds retains the right to execute calculation and payment of remuneration based on percentage determined for music repertoire representation of over 75%, i.e. for musical radio.
In the process of inspecting data from the tariff collective organizations may request additional data from the user and to the right to inspect relevant documents, necessary for the final remuneration calculation for which, in accordance to the Act on Copyright and Related Rights, the user is under obligation to provide at the formal request of the collective organization representative, and no later than 15 days from receipt of the request.
User is under obligation to submit a formal certificate from the regulatory body competent for electronic communications regarding the service zone of coverage by January 15th, i.e. another document which credibly proves the service zone of coverage. If the user does not submit the certificate, minimal remuneration is calculated based on the total number of residents from the coverage zone, and based on data of the competent state authority.
Article 14
In case it is determined in the final calculation that the user has paid a greater amount in advance payments than the amount of the annual remuneration based on the final calculation, the user has the right to a refund of the overpayment and which the organization is under obligation to return within 30 days, provided that within 15 days from receipt of the final calculation files a written request to the collective organization which collects the unique remuneration. If the user does not file a request in the prescribed timeline, the overpayment shall be considered advance payment for the upcoming period.
In case user debts toward the collective organizations are higher than the quarterly remuneration, and/or if the user does not submit data on broadcast subjects of protection for a period longer than 3 months, and if they do not settle this obligation within 15 days from the date of receiving the notification, provided they were also previously informed by electronic means on the sent notification, the collective organizations can make a decision to report such a user to the Republic Broadcasting Agency.
Article 15
Point value is 11.00 Dinars.
Point value is shown net of taxes.
Every January 1st point value is coordinated with the annual index of consumer prices, in accordance with official data of the state statistical office, based on the agreement with representative association of users.
Article 16
Amounts in tables down represent remuneration percentage amounts, i.e. minimal remuneration for use of repertoire in regard to manner of user broadcast.
Tariff number 1
- TV and/pr radio stations
TV stations
Repertoire representation / % of total income/expensefrom 25 % / 1.3 %
from 25 % to 50 % / 1.8 %
from 50 % to 75 % / 2.8 %
over 75% / 3.3 %
Remuneration determined based on percentage implementation to user income/expense cannot be lower than the minimal remuneration which amounts to 0.012 points per resident per month, and is determined based on data of service zone coveragde, received from competent state authorities.
Radio stations
Type of radio / % of total income/expenseTotal radio program / 2.75 %
Entertainment radio / 3.3 %
Musical radio / 4 %
Remuneration determined by implementing percentages of income/expenses of the user cannot be lower than the minimal remuneration which amounts to 0.003 points per resident per month, and is determined based on data on service coverage zone received from competent state authorities.
2. Civilian sector radio/TV stations and those broadcasting repertpire in the multi-ethnic environments
Users whose founders are churches and religious communities or non-governmental organizations, and which received permits from the Republic Broadcasting Agency pay under same conditions stipulated in this Tariff as broadcasters of the civilian sector, provided that the minimal remuneration is determined at the amount of 50% of the minimal remuneration which users are under obligation to pay as per Paragraph 1 of this Tariff number.
Users which in local, multi-ethnic environments broadcast most of their program in one or more minority languages pay under same conditions stipulated by this Tariff, provided that the minimal remuneration is determined for the amount of 50% of the minimal remuneration which users noted in point 1 of this Tariff number are under obligation to pay. This discount is given based on the Republic Broadcasting Agency certificate, i.e. regulatory body for electronic media.
3. Time Sharing
It represents classification to use frequency of mutual channel broadcasters in specific percentage and specific time period.
Users that have been granted classification in using channels are under obligation to submit an agreement on frequency classification for a mutual channel, approved by the Republic Broadcasting Agency, to the collective organization which collects funds from users.
If users who classify use of channels do not submit an agreement classification of channels to the collective organization, collective organization shall independently classify the frequency on the mutual channel equally.
All other provisions of the Tariff, regarding the broadcasters, are also implemented in the use of a mutual channel (time sharing).
4. Special rules for determining remuneration for a legal entity who owns more radio and TV stations and determining remuneration for broadcasters which broadcast out of terrestrial broadcast