On 16 September 2014, the House of People’s Representatives ratified Law No. 28 of 2014 on Copyrights Law (“New Copyrights Law”) to replace Law No. 19 of 2002 on Copyrights (“Law No. 19/2002”).
Those in the creative industries, in particular, are positive about the new Copyrights Law providing greater legal certainty in protecting creations. The government, on the other hand, hopes the new Copyrights Law will enable the creative industries to contribute more to the nation’s economy.
The new Copyrights Law is more comprehensive and straightforward than Law No. 19/2002. It provides clarity on a number of copyrights issues which Law No. 19/2002 is silent on and has 48 more articles than Law No. 19/2002 (which has 78 articles).
The key features of the new Copyrights Law are as follows:
1. New Concept and Definitions
The new Copyrights Law introduces new terminologies and provides new and clearer definitions compared to Law No. 19 of 2002.
For example, the new Copyrights Law recognises that the existence of copyright protection is conditional upon whether the work is in a tangible form. This is consistent with the ‘fixation’ concept under the Berne Convention for the Protection of Literary and Artistic Works. However, the scope of fixation under the new Copyrights Law covers only “the recording of sound, images or both, that is visible, audible, duplicable, or communicated through any devices,” in relation to performances and phonograms instead of the object of copyright as a whole.
2. Extension of Copyrights Duration
The new Copyrights Law reaffirms that copyright consists of both moral and economic rights.
Under the new Copyrights Law, creators have timeless protection in regard to their moral rights to put their name on the copy of their work or use aliases, and to defend their rights in the event of distortion, mutilation, modification over their works, or any other matter which is detrimental to their dignity or reputation.
The new Copyrights Law extends the protection of economic rights from 50 to 70 years after the creator passes away.
3. No More Sold Flat
The new Copyrights Law provides creators with new protections for economic rights with regard to sold flat. For the works which copyrights have been transferred in sold flat or without any time limitation, the copyright is to be returned to its creators when 25 years has passed since the transfer. This provision will apply two years after the new Copyrights Law takes effect.
4. Store Managers must be Aware of Infringement
The new Copyrights Law imposes a criminal sanction of up to a hundred million Rupiah on managers of stores which infringe copyright and/or related rights, regardless of whether the managers were aware of the infringement(s). This provision is quite progressive as it extends criminal sanctions beyond the actual copyright offender to those responsible for managing stores in which copyright and/or related rights are infringed. This places store managers with the burden of ensuring that they thoroughly monitor activities in their stores.
5. Transfer of Copyrights
Law No. 19/2002 provides that copyright is transferrable through inheritance, grant, will, contract or other causes permitted by law. Under the new Copyrights Law, copyright may now be transferred by means of wakaf – this is the act of granting part or all of the property owned as a form of worship and welfare of the society. The new Copyrights Law further states that transferrable copyrights are limited only to economical rights, while moral rights remain attached to the creators.
6. Securitization of Copyrights
The new Copyrights Law provides copyright as an intangible moveable object which can be the object of fiducia security, while Law No. 19/2002 only provides copyright as an intangible moveable object.
7. Removal of Unlawful Works
The new Copyrights Law authorizes the Minister of Law and Human Rights to remove works which violate the norms, public order, national defense and security of the country, as well as applicable laws and regulations.
8. Collective Management Institution
The new Copyrights Law confirms the Collective Management Institution (Lembaga Manajemen Kolektif/LMK) in Indonesia as a channel for the collection of royalties. The new Copyrights Law obliges creators, copyright holders, and related rights owners, to be a member of LMK in order to collect appropriate royalties from users who use copyright and related rights through commercial public services.
9. Dispute Resolution and Penal Mechanism
The new Copyrights Law offers more options for dispute resolution processes. Disputes can be resolved through mediation, arbitration or court proceeding.
Criminal processes apply only if there is a complaint from the victim or other parties as stipulated in the laws and regulations.