‘Fair use’ and the new Copyright Law in Indonesia

shutterstock_107811341A guest post from Andrew Conduit, solicitor at SKC, discusses Indonesia’s new Copyright Law. A development that follows international standards and moves legislation closer to the reality of how copyrighted material is actually used.

With Indonesia’s new Copyright Law set to come into force later this month, it is an opportune time to consider how the new provisions will affect ‘fair use’ in Indonesia.  ‘Fair use’ refers to exceptions to copyright protection, designed to facilitate the use of copyrighted material that may be considered acceptable but otherwise technically infringing copyright laws.  For example, purchasing a downloaded song on an iPad and copying it to an iPhone where both devices belong to the same owner.

The new Indonesian Copyright Law incorporates four significant fair use exceptions:

  1. article 44d: the reproduction and distribution of copyrighted content through IT and communications media where such use is non-commercial in nature;
  2. article 46(a): making one copy of a computer program for backup or research and development purposes;
  3. article 47: making one copy of any type of work for personal use; and
  4. article 50: temporary copies of works made by digital media.

These broad exceptions for non-commercial and personal use are evidence of a more progressive approach to copyright protection in Indonesia.  Whereas there was a massive disconnect between the provisions of the current Copyright Law and how Indonesians actually deal with copyrighted material, the new law closes this gap.  This makes the law a more relevant legal instrument, and one that is more likely to be respected and observed.

Fair use exceptions are also included in the copyright laws of other countries.  For example, the equivalent provision in US Copyright Law (17 U.S.C. § 107):

… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work. 

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The new Indonesian Copyright Law also includes the familiar exceptions for education, news reporting, and government institutions provided the author of the work is properly disclosed.

SKC Law are a Jakarta-based specialist law firm that advise on all aspects of Indonesian intellectual property law. To find out more, view their website here. To read other informative posts on IP law in Indonesia see the SKC blog here.

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