4.1 Possibilities, Obstacles and Challenges of Implementing Copyright Law on the Internet
4.1.1 Copyright System in Indonesia (History, Regulation and Purpose)
Chapter IV
POTENTIAL PROBLEMS AND CHALLENGES OF IMPLEMENTING COPYRIGHT PROTECTION ON THE INTERCONNECTION
NETWORKING
4.1 Possibilities, Obstacles and Challenges of Implementing Copyright Law
has been realized in particular form, for example; (painting, song drafts, photographs, video tape, or letter), the copyright holder has been entitled to the copyright.
Copyright works which are protected in Indonesia, such as; books, computer programs pamphlets, layout of published works, speeches, lectures, props made for education and science, songs or music with or without text, drama, musical, dance, choreography, puppetry, mime, art in all its forms (such as painting, drawing, sculpture, calligraphy, sculpture, collage, and the applied arts), architecture, maps, art batik (and other traditional works of art such as songket and ikat art), photography, cinematography, and does not include industrial design (those are protected as intellectual property of its own). Creation resulting from adaptations such as translations, interpretations, adaptations, anthologies (e.g., a book which contains a collection of papers, the set of tracks recorded in a single medium, as well as the composition of various works of dance options), and databases are protected as its own creation without prejudice to the copyright in the original creation.313
Registration of copyright works in Indonesia is not a necessity for the creator or copyright holder. The emergence of copyright protection is begun since the work was created, not because of enrollment proficiency. However, the registration letter of creation can be used as evidence in the court if a dispute
313 Indonesia Copyright Law No 28, 2014, art 40.
arises in the future.314 Copyright registration organized by the Directorate General of Intellectual Property, under the Indonesian Ministry of Law and Human Rights.
Copyright exceptions and limitations are considered to not violate copyright such as;315 the use of a copyrighted work is not an infringement if the creators of the sources mentioned or stated clearly and used for definite purpose of non-commercial activities, social, education and research. The most important thing is not to cause harm to the creators either their moral right or economic rights.
On October 16, 2014, the Former President Yudhoyono signed Indonesia’s new law regarding copyright replaced the prior of copyright law 2002. The new law brought some strength clauses to possibly implement immediate relief against digital form and infringement of cyber networking, in accordance with the TRIPS Agreement, Berne Convention, The WCT and WPPT.316 Hence, those provisions had serious concern, while other provisions need further policy in implementing the regulations. In some cases, needed changes were omitted. Concerning enforcement against copyright infringement on the Internet, articles 54 to 56 of the Law hold workable approach to addressing Internet-based infringements in Indonesia. Copyright holders believe, this combination of administrative and judicial assistance, when fully executed, will let the government to take effective action to stop online infringements. A new requirement in article 55 was inserted
314 Id, chapter X.
315 Id, chapter VI.
316 Indonesia had joined the WIPO Copyright Treaty (WCT) on June 5, 1997 (in force March 6, 2002) and the WPPT on February 15, 2005.
between the prior drafts and the final law, namely, that for any act involving an
“entire” website, it shall be referred to a court for review within 14 days.
Nevertheless, under this law, criminal lawsuit are now complaint-based.
Copyright holders analyze this as additional obstacles to establish effective enforcement; essentially, criminal cases should be prosecuted on an ex officio basis. Additionally, the criminal enforcement takes step backward from the previous law, in that they no longer provide minimum mandatory statutory criminal penalties. Without a minimum fine, right holder is concerned warning sentences will not be forthcoming. Specifically, some of the criminal penalties may be too weak to be avoided. Finally, Article 95 of the new Law creates
”mediation” before a piracy case can be prosecuted. The purpose and operation of this provision in practice is still unclear to divide between civil or criminal penalties.
Reduction efforts of copyright infringement to the criminal law in Indonesia have been exist since Auteurswet 1912 until now with Copyright Law No. 28, 2014. Before 1982, tendency toward resolution problem of copyright infringement conducted by the Criminal Code.317 Various cases are classified as counterfeiting (Article 263 of the Criminal Code) and theft (Article 362 of the Criminal Code), and starting in 2002 has been enforced with clear laws that specifically regulate copyright issues.
Criminal provisions that protected copyright changes and growth significantly. The factors were from economic side, because basically the
317 “Criminal code” in Indonesia is called “KUHP” (Kitab Undang-Undang Hukum Pidana) which adopted from Netherland Law Codification.
copyright criminals can increase great financial benefits, especially if criminals act is piracy. Copyright crime prevention efforts in addition to raising the threat of criminal delict complaint (report -based) also change the reference to a common delict.318
In the Criminal Code, the criminal types who threatened to the actors of copyright violations are: imprisonment or criminal fines and an additional form of seizure of goods owned by the proceeds of crime if convicted. Criminals of copyright against the Criminal Code are categorized as a crime and imprisonment for up to 2 years. Criminals contained in the Criminal Code are classified as a crime and imprisonment up to 2 years and 8 months or a maximum fine of five thousand Rupiahs.
Hence, in article 380 of the Criminal Code formulates: “Punishable by imprisonment for a maximum two years and eight months or a fine of five thousand rupiahs”. In this case, the judge was given a chance to drop any imprisonment or fine only. Discussing about the length of a criminal offense can be interpreted as the length and duration imposed criminal law contained in the articles containing criminal threats. Two things above can affect crime prevention effort of copyright violations. High criminal threat is one of psychological effect against the maker and potential makers in committing a crime, but if it was not followed by long punishment or at least close to the maximum criminal threats, the special and general preference would be difficult to achieve.
318 “Delict”; this words in Indonesia, has means “types of complaints principle” in Criminal Code.
There are three types of “delict” types of; Regular delict, Complaint/report delict and special delict.
On the Indonesian copyright law no 28, 2014; any person without the right to do such activity against the copyright law for the commercial purpose, shall be punished with imprisonment of two years and/or a maximum fine of three hundred million rupiahs.319 Compared with American and Japanese, copyright law of Indonesia is more focused on copyright exemptions like in Japan.320 The principle of fair use is not listed clearly in the new amendment, but practically copyright exemptions created as guidance in implementing the fair use doctrine itself. In addition, copyright protection on the Internet also set in Indonesian Information and Electronic Transaction Law or more known by Indonesian Cyber Law.321 The punishment ruled for six years maximum of prison and/or fined maximum one hundred million.322