Indonesia’s New Copyright Law, a Great Way to Deal with Copyright Infringement

 In HAKI

Developing creative industry has been one of the main programs of President Joko Widodo since his campaign. Now, amidst the surge of creative fields and projects boosted by digital trends, copyright infringement stays a serious issue. The country still has weak protection for intellectual property owners, and piracies are rampant.

Despite the uphill battle against piracies and other threats against intellectual properties, the Indonesian government has taken several steps to solve the problems. One of the strategies is to revise the country’s copyright law, adding more details and patching potential loopholes.

Indonesia’s Position in Intellectual Property Index

In 2016, the Global Intellectual Property Center conducted a global survey about intellectual property protection index, ranking the level of intellectual property and trademark protection in those countries. From 38 surveyed countries, Indonesia was placed at the 33rd rank, only slightly better than Algeria, Vietnam, Thailand, India, and Venezuela.

Image Source: U.S. Chamber International IP Index

The survey report shows that intellectual property rights and trademarks in Indonesia have not been prioritized enough by the government and lawmakers. There were very few cases of intellectual property infringements that reached the high court. There is also glaring lack of knowledge about the meaning of intellectual property, making it hard to implement the law more seriously.

Another glaring problem is piracy. Rampant piracies happen not only in big cities, but also in small towns and villages. Indonesian Public Against Thefts (Masyarakat Indonesia Anti Pemalsuan) reported that 33.5 percent of cases are related to software. In 2013, Indonesian Association of Singers, Songwriters, and Musicians (Persatuan Artis Penyanyi, Pencipta Lagu, dan Musisi Indonesia) reported that their communities suffered annual losses of IDR4 billion, due to piracies.

Judging from the data, the revamping of Indonesia’s copyright law is expected to help the government and lawmakers combat similar violations, especially when entering the digitally-supported creative era.

What Indonesia’s New Copyright Law Covers

On 16 September 2014, Indonesian legislative officially revamped the previous copyright law (Regulation Number 19 Year 2002) into New Copyright Law or “Undang-Undang Hak Cipta Baru” (Regulation Number 28 Year 2014). The new law still covers copyright infringement on music, movie, and software on the internet in Indonesia, but with several improvements.

The new law was created after the old one had been deemed old-fashioned and could not cover various new aspects in the creative industry. It covers at least 10 key points, which are:

  1. The extension of copyright protection period
    The new law increases the period of legal protection for copyright and other intellectual properties. The protection applies for 70 years after the death of the original creator, starting from 1 January in the next year. If the copyright is owned by a legal entity, the protection period is 50 years.
  2. Protection for economic profits
    A creator has full economic rights for his or her works, and it extends to the official beneficiaries that inherit the works. The new law limits the transfer of economic rights in the form of flat selling. This will help if the beneficiaries cannot be contacted immediately after the death of a creator.
  3. More effective dispute settlement
    The new law provides improved, more detailed solutions to settle any disputes that stem from copyright and trademark ownerships. The solutions include mediations, arbitrage, court settlements, and criminal lawsuits.
  4. Management of marketplaces
    The new version of Indonesia copyrights law and regulation covers marketplaces such as stores, shopping centers, and other trading establishments. The owners or managers of those places must ensure that there are no copyright or trademark infringements in their establishments.
  5. Intangible mobile objects as fiduciary warranties
    The law considers copyrights and trademarks as mobile, intangible objects that can be used as fiduciary warranties (trust-based).
  6. Power to erase applied copyrights
    The government body at the ministry level has rights to erase applied copyrights and trademarks if they are proven to violate moral norms, public orders, national security, and other formal and legal aspects.
  7. The rights of profit
    Creators, trademark/brand owners, and the recognized beneficiaries of registered intellectual properties automatically become members of Collective Management Association (Lembaga Manajemen Kolektif) to gain profits.
  8. Royalties
    Creators, trademark/brand owners, and the recognized beneficiaries of registered intellectual properties have rights for royalties that come from commercial uses of the IPs.
  9. License
    The Collective Management Association, which is responsible for managing the economic rights of the creators, is obligated to apply for an operational license to the Minister.
  10. The use of copyrights and other intellectual properties
    The new law regulates the uses of copyrights and other related intellectual properties, as parts of responses toward the development of communication and information technologies.

 

 

 

Differences between the Old and New Indonesia’s Copyright Laws

The new copyright law includes several additional aspects, which were not present in the previous law. For example, Regulation Number 19 Year 2002 did not acknowledge the use of copyrights, trademarks, and other intellectual properties as fiduciary warranties.

The new copyright law also acknowledges the “moral rights”, which include the rights of a creator to use either his/her real or alias name, and keep the ownership of the intellectual property when it is distorted, changed, modified, or anything that may threaten his/her reputation. The moral rights also allow a creator to change his or her works within the copyright period.

The 70-year legal protection for intellectual property in Indonesia only applies to several objects, which are:

  • Books, pamphlets, and other written works
  • Any objects or materials used for educational purposes
  • Lectures, speeches, and other similar works
  • Stage plays, musical dramas, dances, operas, choreographies, shadow puppets, mimes, and other performance works
  • Songs and music, with or without lyrics
  • Architectural works and designs
  • All types of fine arts, such as paintings, drawings, statues, and engravings
  • Maps
  • Batik, ikat, calligraphy, and other motif arts

Meanwhile, there are works that only get 50-year legal protections after their first launch. Afterward, their status becomes public domain, and people are free to adapt or modify them. They are:

  • Photos and other photography-related arts
  • Portraits
  • Works of cinematography
  • Video games
  • Computer programs and software
  • Works that are the results of transformations, such as adaptations, translations, anthologies, database, modifications, and interpretations from original works
  • Any compilations of creations or data that can be read using computers or other tools
  • Any translations, modifications, or adaptations of traditional cultures
  • Compilations of expressions based on traditional cultures, if they are original works

The new law also deals with marketplaces, something that was not considered within the scope of the previous regulations. Since marketplaces have tremendous roles in distributing pirated works of art, the new law will take the managers/owners of the places into account, if there are pirated or fake products sold there. The managers or owners whose marketplaces sell pirated stuff can face fine as large as IDR100,000,000.

Finally, the new law also sees the forming of Collective Management Association (Lembaga Manajemen Kolektif), a nonprofit institution that helps creators to manage their royalties and other aspects of intellectual properties.

Dealing with Copyright Infringement in Indonesia

When a creator feels that his or her creation is pirated or used without permissions, he or she can take actions based on the formal procedures. Since Indonesia’s new copyright law recognizes several solutions, a creator must consult with a lawyer and take the best actions based on the severity of the case.

Here is how to report copyright infringement in Indonesia:

 

  • Reporting to the Court of Commerce

In Indonesia, any cases related to alleged violations toward intellectual property rights are mostly handled at the Court of Commerce (Pengadilan Niaga). The client, together with his/her legal advisor, should register their case with the court official or registrar. The client needs to fill a special form, and the registrar will sign it. The client then will get the receipt that needs to be kept.

  • Reviewing the case

During the waiting period, the registrar will report the application to the head of the court. It is done within at least two days after the date of the case registration. The head of the court will review the case application and determine the date of the court session. The process takes at least three days after the case is reported.

  • Receiving the court session schedule

The client and his/her lawyer will receive notifications about the first schedule of the court session. The formal notification will be issued within at least seven days after the date of registration.

  • Following the court sessions

Depending on the severity of the case, the client may need to come to the court repeatedly. The Court of Commerce has obligations to release the verdict within 90 days after the first registration date of the case. However, if the verdict is not reached after 90 days have passed, the court may extend the session for another 30 days.

  • Payment for losses

If the verdict favors the client, the person who is reported may need to pay certain amounts of money to cover the client’s losses. The money should be paid within six months after the official verdict is released.

Usually, when it comes to intellectual property-related disputes, the involved individuals or groups may be advised to settle through mediations first, before registering their cases in the Court of Commerce. On the contrary, when the court sessions do not end in satisfying verdicts, the client may appeal to higher courts. However, the client must appeal within 14 days after the verdict date.

Why Copyright Infringement Lawyer is Important

Lawyer illustration

Despite the revamping of the regulation, copyright violation in Indonesia is still a serious problem. Proving violations against one’s intellectual properties can be a tedious and complicated process, especially for small business owners or startup founders. If you plan to release a product, program, brand, or any work of art, you should invest in copyright infringement lawyer or consultant.

Known as konsultan HKI or pengacara HKI, a copyright infringement consultant or lawyer helps to create a legal protection for the works of art, brands, or products released by the clients. The consultant also accompanies clients going through court sessions and dispute settlements. Hiring a consultant should be the first step you take when you decide to publish a major work or launch a product.

A copyright infringement lawyer Indonesia has specific tasks. Here are what you can expect from the lawyer to do:

  • Identifying the case

There are possibilities that reported intellectual property might not be something covered by the law, which makes it insufficient to make a case during an alleged dispute. A copyright infringement lawyer or consultant needs to identify the possibility of making (or not making) a case.

  • Categorizing the intellectual property

Not all people recognize the exact category of their intellectual properties, whether they are brands, trademarks, or copyrights. A lawyer need to review the report and determine the exact category of the client’s intellectual property. It is important to ensure that the client makes the right case.

  • Counseling a client in an intellectual property dispute

A lawyer gives legal counsel and support for a client who wants to protect his or her intellectual property. The lawyer also gives advises about the best acts to make during a particularly long dispute.

  • Helping a client registering intellectual property

When an artist, designer, or business owner wants to register a specific intellectual property, a lawyer or advisor assists in all steps. This also includes categorizing intellectual property type properly.

When a person decides to register an intellectual property, he or she should consider hiring a lawyer or consultant. It will help in clearing possible roadblocks when launching a business, works of art, or products, and avoid problems in the future.

A copyright lawyer usually forms a long partnership with an intellectual property owner due to the nature of the job. Forming good networking with a copyright lawyer or advisor is always a good idea.

How to Register Intellectual Property in Indonesia

Copyright and trademark registration in Indonesia are done at General Directorate of Intellectual Property Rights (Direktorat Jenderal Hak Kekayaan Intelektual, or Ditjen HKI). People can visit the office in South Jakarta or use the help of a lawyer/consultant. Those who live outside Jakarta but want to register directly can visit the representative offices of Law and Human Rights Ministry. The institution also allows people to register online at its website, Dgip.go.id.

To register an intellectual property, there are several documents to prepare. They are:

  • An official statement about the client’s ownership of certain intellectual property. The letter must be signed by the client, complete with a duty stamp (IDR6,000)
  • Official statement about the authenticity of the works
  • A separate letter to prove the involvement of a legal representative, if the person registers through a registered lawyer or consultant
  • Legalized copies of a law institution certificate, if the person registers through a registered law office
  • Copies of taxpayer numbers (NPWP)
  • Copies of the client’s valid identification card

A client also needs to prepare samples of the intellectual properties that will be registered. The amounts are different, depending on the types. They are:

  • Brand: at least 24 colored copies of the brand etiquettes, printed on paper. Four must be included on the registration form
  • Books: two copies of books in good condition. If the books have images of someone else, there must be statement letters from the person (or the relative or custodian) that allows the use of the picture
  • Computer programs: two CDs of program or software, complete with the description
  • Song and musical composition: two CDs of the recording, and ten copies of a song’s lyrics and notations
  • Stage play: two copies of the complete script and the recording of the play
  • Movies: two recorded copies of the entire movie, and two copies of the script
  • Architectural work: one copy of the project’s image
  • Dance works and choreographies: ten copies of the movement images and two copies of performance
  • Shadow puppets and other similar stage performances: two copies of complete scripts and two CDs of the performance’s recording
  • Map: one copy of the complete map
  • Visual arts (painting, batik, ikat, calligraphy): ten photos of the works
  • Works of anthologies and translations: two copies of the entire writing

Once the client prepares all the samples and documents, he or she must file a registration form from Ditjen HKI. If the client does not provide complete requirements, he or she has three months to prepare them. After everything is complete and the form is sent, Ditjen HKI will evaluate the request. If received, the client will acquire a certificate that states the ownership of the intellectual property.

While the process has become easier than before, it is best to use the assistance of a lawyer or consultant. Professional assistance will make the process faster, and the owner of the intellectual property can focus on his or her business and other projects while waiting.

Conclusion

Indonesia may have huge problems with violations of intellectual properties, but the revamping of the copyright law will give a better chance for business owners, artists, authors, and others in the creative industry to protect their rights. The new law covers more details, and even add new protection aspects, such as the inclusion of marketplaces, and the forming of Collective Management Association.

With better regulation, business owners and creative workers can get advantages in copyright claim in Indonesia, and earn deserved profits from their works.

BP Lawyers can help you: we can assist you in providing the best solution to the legal program of your business or your company’s.  You can contact us via bpl@smartlegal.id or +62821-1234-1235

 

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