DECREE NO. 5,054, OF April 23, 2004

Disposes about the administrative procedure for application of penalties for infractions committed in the activities cinematic and videographical and in other activities to them linked, and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that confers him the art. 84, inciso IV, of the Constitution, and with a view to the willing in the incisos II and IV of the art. 7º and in the arts. 16 and 60 of the Provisional Measure No. 2.228-1, of September 6, 2001,

DECRETA:

CHAPTER I

OF THE EXERCISE OF THE AUDIT

Art. 1º A supervision of national and foreign film and videographic activities and of the other activities to them linked, in the national territory, including in the various market segments, will be exercised by the National Film Agency- ANCINE, in the form of this Decree, upon follow-up, control, orientation, ascertainment of irregularities and infractions, as well as application of penalties.

Art. 2º The ANCINE's fiscalizing action on the territory national, with a view to preventing illicit and undesirable conduct, primarily by the monitoring, control and guidance of individual entrepreneurs and corporate societies, whose acting is subject to the legal norms governing the industry cinematic and videographical and too much activities to them linked.

§ 1º The accompaniation of the film and videographical activities in Brazil, of which it treats the caput of this article, will far be upon the mandatory registration of the companies of production, distribution, marketing, display and vehiculation of domestic and foreign audiovisual works, as well as of the titles of these works.

§ 2º For the control of the industry cinematic and videographic in Brazil, ANCINE will contest with the support of the Information System and Monitoring of the Cinematographic Industry and Videophonographic-SIM.

Art. 3º The SIM, of responsibility of the ANCINE, will be drawn up and executed in accordance with the standards by it expedited.

§ 1º The agents of film and videographical activity are expected to provide the SIM with the data regarding the production, display, distribution, vehiculation and marketing of Brazilian and foreign cinematographic and videographical works, in all market segments, as well as any other data relating to the activity.

§ 2º A monitoring of the film industry and videofonografica could be carried out in loco, by sampling, by complaint, by means of the monitoring and control of the information provided by the SIM or by other forms defined in regulation by the ANCINE, and will consist of the apuration of irregularities and infractions, as well as the application of penalties and fines.

Art. 4º The ANCINE will be able to exercise its fiscalizing action directly through organ and entities of the federal, state, federal and municipal public administration, upon the celebration of convennials of technical cooperation.

§ 1º The Congens of which it treats the caput of this article will only target the cooperation and aid of the external monitoring action of ANCINE, and it should be defined, in the respective instruments, the conditions of performance of the functions, with delegation of specific powers for ascertaining the infractions.

§ 2º Technical cooperation arrangements should expressly provide for the reservation of powers to ANCINE to undertake, by itself or by prepost, surveillance activities in the object areas of the convenium, regardless of any formality preview.

CHAPTER II

OF THE ADMINISTRATIVE PROCEDURE

Section I

Of The General Provisions

Art. 5º The infractions noted in the exercise of the activities subject to the control and surveillance of ANCINE will be ascertained in administrative procedure, which should contain the sufficient elements to determine the nature of the infraction and the individualisation of the penalty, assured the right to the broad defence and the adversarial, observed the provisions of Law No. 9,784 of January 29, 1999.

Art. 6º The public servants in exercise at ANCINE and in the public bodies and entities conveniently, when from the exercise of their police power, they are competent to wash self-infringement and institute administrative procedure.

Art. 7º The attributions of the supervisory agent of ANCINE will be exerted external and internally, in accordance with the standards by it expedited.

Art. 8º The public agent, in exercise at ANCINE, that check the occurrence of infraction to the norms concerning the activities to which if refers to this Decree and is not competent to undertake the autuation, it should communicate the fact to the authority in charge of the supervisory action, in circumstantial representation, for the immediate ascertainment and adoption of the enforceable arrangements.

Art. 9º Any person, finding administrative infraction, will be able to direct representation to the competent administrative authority, for effect of the exercise of police power.

Art. 10. The public authority that has knowledge of administrative infraction is obliged to promote its immediate ascertaining, upon own administrative procedure and give notice to ANCINE.

Section II

From the Deadlines

Art. 11. The administrative procedure for ascertaining infringement of which it treats this Decree shall observe the following maximum deadlines:

I-twenty days for the offender to offer defence or challenge against the infringement self, consigned from the date of the science of autuation;

II-thirty days for the competent authority to judge the self-infringement, counted from the date of the submission of the defence or contest;

III-twenty days for the offender to submit appeal of the sentencing decision to the higher instance; and

IV-five days for the payment of fine, counted from the date of receipt of the notification.

Art. 12. The deadlines set in this Decree count themselves in the form of the arts. 66 and 67 of Law No. 9,784, of 1999.

CHAPTER III

OF THE INFRACTIONS AND ADMINISTRATIVE PENALTIES

Art. 13. Every action or omission in disregard of any legal or regulatory provision regarding the performance of film or videofhonographic activity or national or foreign audiovisual work exploitation characterizes infringement administrative, to which, for purposes of applying for penalties, it will be classified according to the nature of its gravity.

Art. 14. Constitute soft administrative infractions:

I-leave the exhibition company of issuing and forwarding to ANCINE report enumerating the Brazilian and foreign cinematographic works displayed in the period by theaters or display rooms of your network, number of days displayed, total spectators and box office income, with indication of quantity, type and price of tickets, as well as of the due tributes, as defined in normative act of ANCINE;

II-leave the distributors and locators of cinematographic and videographical works intended for the domestic video market, by means of leasing or direct sale to the consumer, in any support, of emitting and refer semester to ANCINE report enumerating the Brazilian and foreign cinematographic works distributed in the period, with title indication and respective number of copies, as per standard expedited by ANCINE;

III-display or commercialize cinematographic and videographical works without the indelible and irremovable imprint on the material support of the copy, containing all information identifying the holder of the copyright in Brazil, as a model approved by ANCINE and the Registry of the Federal Revenue Ministry of the Ministry of Finance;

IV-leave the company producing cinematographic or videographical works, carried out with public resources or arising from resignation fiscal, from depositing in the Brazilian Cinemeca or entity accredited by ANCINE a low-contrast, interpositive copy or digital matrix of the artwork, to its due preservation;

V-display or commercialize the work cinematographic or Brazilian videographical without the prior record of the title in ANCINE and the issuance, when it is the case, of the Brazilian Product Certificate-CPB;

VI-present for the purposes of registration, version, adaptation, vignette or call not derived from the cinematographic work or advertising videography indicated as original;

VII-display or vehicular and promote the display, vehiculation or transmission in the Country, in any market segment, of Brazilian film works or advertising videophones without prior and regular collection of the Contribution to the Development of the National Motion Picture Industry-CONDECINE; and

VIII-leave the Brazilian company responsible for the content of the programming of channels of the electronic mass communication services by subscription, generated in Brazil or abroad, of providing ANCINE with its programming, including titles or chapters of serial works and advertising works as per standards by it expeditiated.

Art. 15. Constitute serious administrative infractions:

I-leave the room or exhibition space intended for the exploration of cinematographic works in any support, of using box office revenue control system, as standards dispatched by ANCINE;

II-explore commercially, in the Brazilian market, cinematographic and videographical works whose copying or reproduction services of the matrices have not been carried out in laboratories installed in the Country;

III-display, vehicular or transmit in the Country, in any industry, cinematographic works or foreign advertising videographs without prior and regular pick-up of the CONDECINE;

IV-display, vehicular or transmit, in any industry, cinematographic work or foreign advertising videography adapted at odds with the standards dispatched by ANCINE;

V-keep on display, vehiculation or commercialization of the Brazilian advertising or advertising videography, after regular notification by ANCINE determining the suspension of its marketing or withdrawal of its display; and

VI-promoting the adaptation of cinematographic work or foreign advertising videography, with failure to comply with the requirement of its realization by Brazilian producing company registered in ANCINE.

Art. 16. They constitute very serious administrative infractions:

I-leave the company owning, locatary, leasing or programmer of rooms, spaces or commercial public display sites of exhibiting works annually Cinema Brazilian film of long films by the number of days and in the form fixed in decree;

II-commercialize, display or vehicular, in any segment of the Brazilian market, cinematographic works and videophonography, without prior information to ANCINE from the contracting of commercial exploitation rights, licensing, production, co-production, display, distribution, marketing, import and export, as well as payment of CONDECINE;

III-vehicular copy or original piece of film or advertising videography, without which it is conspicuous in the claquete of identifying the number of the respective title record in the ANCINE;

IV- hiring programming or channels of international programming without intermediation of Brazilian company, qualified in the form of § 1º of the art. 1º of the Provisional Measure No. 2.228-1, of September 6, 2001; and

V-leave the company distributor of domestic video, for leasing or sale in any support, to maintain between its securities, and to launch commercially titles of Brazilian cinematographic or videofonographic works in the percent set annually in decree.

Art. 17. Without prejudice to the penalties of civil or criminal liability cablements, administrative infractions will be punished, either alternative or cumulatively, with the following penalties, regardless of their enumeration order:

I- warning;

II-fine, simple or periodic;

III-temporary, partial or total suspension, of the marketing, display, vehiculation or transmission of the cinematographic work or videofonography; and

IV-prohibition of the marketing, display, vehiculation or transmission of the cinematographic or videofonographic work.

Art. 18. For the imposition of the penalty and its gradation, the administrative authority will take into account:

I-the mitigating and aggravating circumstances;

II-the seriousness of the infraction, with a view to its motivation and consequences for the film and videophone industry in Brazil;

III-the background of the offender as to the compliance of the current legislation; and

IV-the situation economic of the offender.

Art. 19. The warning penalty will be applied by the practice of the administrative infractions provided for in this Decree.

Art. 20. The penalty of fine consists in the obligation to pay amount in cash and will be applied in the occurrence of the infractions and the following limits:

I-from R$ 2,000.00 (two thousand reais) to R$ 100,000.00 (one hundred thousand reais), in the hypotheses of which it treats art. 14 of this Decree;

II-from R$ 101,000.00 (one hundred and one thousand reais) to R$ 1,000,000.00 (one million reais), in the hypotheses that it treats art. 15 of this Decree;

III-from R$ 1,000,001.00 (one million and one reais) to R$ 2,000,000.00 (two million reais), in the hypotheses that they treat the incisos II, IV and V of the art. 16 of this Decree;

IV-value corresponding to five percent of the daily average box office income ascertained in the semester prior to the infraction, multiplied by the number of days when the mandatory was not fulfilled, in the hypothesis that it treats the inciso I of the art. 16 of this Decree; and,

V-value corresponding to three times the value of the contract or the vehiculation in the hypothesis that it treats the inciso III of the art. 16 of this Decree.

Single paragraph. For the purposes of the inciso IV of this article, it will be understood by middle-income earned income after deducting gross grossing grossing, from the value of municipal, state, federal and copyright taxes that inciditate on the value of the ticket to the public.

Art. 21. Observed the provisions of the art. 20 of this Decree, the values of administrative fines shall be limited to:

I-one tenth per cent of gross revenue, in respect of the infractions provided for in art. 14, in the inciso V of the art. 15 and in the incisos II and V of the art. 16 of this Decree;

II-three tenths per cent of gross revenue, in regard to the infractions provided for in the incisions I to IV and VI of the art. 15 and in the inciso VI of the art. 16 of this Decree; and

III-five tenths per cent of gross revenue, in regard to the infraction provided for in the inciso IV of the art. 16 of this Decree.

Single paragraph. For the purposes of this article, it will be understood by gross revenue the total box office collection, in the case of rooms or exhibition spaces, or, in the remaining cases, the total billing, ascertained in the fiscal year prior to the infraction.

Art. 22. ANCINE will arbitrate the value of the gross revenue referred to in art. 21, if it is not possible to establish it for lack of information, observed, isolated or jointly, among others, the following criteria:

I-the gross revenue regarding the last period in which the legal person maintained writing in accordance with commercial and tax laws, updated monetarily;

II-the sum of the current, and permanent, current asset values on the last known balance sheet, updated monetarily;

III-the value of the constant capital of the last balance sheet, known or registered in the acts of constitution or alteration of the society, updated monetarily;

IV-the value of the net worth constant of the last known balance sheet, updated monetarily;

V-the value of the purchases of goods effected in the month;

VI-the sum, in each month, of the payroll values of employees and purchases of raw materials, intermediary products and packaging materials;

VII-the sum of the values due in the month to employees; and

VIII-the monthly value of the rent due.

Single paragraph. It will apply, in a subsidiary way, to the provisions of this article, the standards of profit arbitrage, provided for under the federal tax law.

Art. 23. The simple fine will be applied whenever the offender, by fault or dolo:

I-fail to sanctuate it, within the time set by the administrative authority, when warned by wrongdoing that it has been practiced; and

II-opuser embarrassment to the supervision of administrative authorities.

Art. 24. The periodic fine will be applied, as set out in ANCINE's standard, whenever the infringement of the infraction extends in time, until the effective cessation or regularization of the situation.

Art. 25. The repeat offender recidivism with a fine will imply the increase in the penalty originating in double the value of that previously imposed.

Art. 26. The penalty of temporary, total or partial suspension, of the marketing, display, vehiculation or transmission of cinematographic work, applicable in the case of the incisant VII of the art. 14 of this Decree, will be imposed:

I-when the fine, at its maximum value, does not correspond, on the grounds of the seriousness of the infringement, to the advantage earned due to the infractional practice; and

II-in the case of recidivism.

Art. 27. The penalty that it treats the inciso IV of the art. 17 will be applied when the offender:

I-has already been punished with the temporary suspension penalty referred to in the art. 26 of this Decree or to have it unfulfilled; and

II-in the case of recidivism.

Art. 28. For the purpose of the provisions of this Decree, it constitutes recidivism repetition of practice of infringement of the same nature by the same agent after the administrative decision which has joined him for any infraction.

CHAPTER IV

OF THE FINAL PROVISIONS

Art. 29. The values raised in payments of fines for administrative infringement constitute revenue of ANCINE.

Art. 30. ANCINE will expedite the normative acts necessary for the execution and fulfillment of this Decree.

Art. 31. This Decree comes into effect on the date of its publication.

Brasilia, April 23, 2004; 183º of Independence and 116º of the Republic.

LUIZ INACIO LULA DA SILVA

Joao Luiz Silva Ferreira