The Republic of Indonesia is the largest economy in Southeast Asia and the 16th largest worldwide. It is also the most populous country in the region with an estimated total population of over 255 million and represents a huge market opportunity for European trade.
In this segment of the South-East Asia IPR Basics series, we’ll be looking into the core IPR legislation and procedures in this prominent region.
As always, if you’d like any more information, feel free to check out our website, or contact our experts for free on our IPR Helpline.
Despite its size and status as ASEAN economic heavyweight, Indonesia is currently just the EU’s fifth largest trading partner in the region. This being said, growth in Indonesia-EU trade is steady, with EU imports to Indonesia rising 5.2% and Indonesian exports to Europe by 16.5% between 2009 and 2013[1], total trade in 2013 reaching EUR 24.1 billion.
Indonesia represents a growing potential market for EU products and services, with rapid economic development, increasingly technological complexity in industry, and increasing disposable income leading to increased demand for quality machinery and products. Chief imports include high-tech machinery and equipment, chemicals, fuels, and foodstuffs. The Indonesian government has also highlighted the importance of development in certain sectors and is actively supporting and promoting growth in fashion, ICT, film, publishing, music and R&D, thus creating potential markets for EU imports and investment in these areas. Finally, as disposable income rises smartphone and other electronic device penetration of the market is on the rise and Indonesia’s large population is a significant contributing factor to predictions that Southeast Asia is set to be the largest growth market for the smartphone and app markets in coming years.
Indonesia is also a manufacturing base for textiles and (semi) manufactured goods, offering attractive savings on labour comparative to EU based manufacturing.
IP law in Indonesia
Indonesia is a member of the World Trade Organization (WTO), and has ratified the Agreement on Trade-Related Aspects of Intellectual Property (TRIPs Agreement) along with the Paris Convention for the Protection of Industrial Property[2].
As a result of accession to these international agreements, together with extensive domestic legislation, Indonesia’s IPR protection is considered to be comprehensive, providing appropriate levels of protection for all rights in accordance with international standards. However, this being said, there has been some criticism of enforcement mechanisms in the Republic, with international pressure for strengthening for an effective enforcement regime.
What is Copyright?
Copyright is a legal term used to describe an exclusive bundle of rights granted to authors, artists and other creators for their creations. These rights include two sets of rights, ‘economic’ rights, i.e. the right to profit from your creative work through exclusive right to approve or deny permission to copy, licence, show, play or perform, broadcast, or adapt your work. Economic rights can be assigned to another person or organisation where the creator of the work wishes it, or where the creation has been produced under specific contractual conditions to this effect. ‘Moral’ rights cannot be assigned or sold, they provide that the author has the rights to be identified as creator of the work (where asserted in writing) and object to the work being used in a derogatory way or altered.
Copyrightable material
Copyright in Indonesia is granted automatically following the creation of an original work. Works protected are in the fields of science, arts and literature which principally includes:
- Literary works, i.e. Books, computer programmes, pamphlets, visual aids made for educational and scientific purposes, typographical arrangements, lectures, addresses, and all other written or spoken works.
- Musical works such as songs or music with or without lyrics, dramas, musical dramas, dances, choreographic works, puppet shows, pantomimes.
- Artwork, including paintings, drawings, engravings, calligraphy, carvings, sculptures, architecture and maps
- Photography and cinematic works
- Translations, interpretations, adaptations, anthologies, databases and other similar works
Protection arises automatically only when the work is created in a material form, i.e. written down or recorded as audio or video.
Terms of protection for copyright
Protection of copyright in Indonesia generally lasts for the author’s lifetime plus 50 years after his or her death, however there are some exceptions:
| Nature of work | Duration of copyright |
| Computer programs, cinematic and photographic works, databases and adaptations | 50 years from the date of first publication |
| Performing rights and recording rights | 50 years from the date of performance or production |
| Broadcasting rights | 20 years from date of first broadcast |
Obtaining copyright protection in Indonesia
As previously mentioned, copyright is granted in Indonesia as soon as the eligible work has been created in Indonesia. Furthermore, as a party to the Berne Convention on the Protection of Literary and Artistic Works[3] any works created in a member nation are also protected.
It should be noted that copyrights for works created by an employee, created during the course of and as a result of their employment, do not automatically revert to the employer. As such, employment contracts should be drafted carefully and expressly address how such intellectual property will be assigned. It is important to keep original, signed contracts safe as the courts and IP authorities will not usually recognise photocopies in the event of a claim.
Whilst it is not required to register copyright with Indonesian authorities, it is often advisable as this registration will provide SMEs with undeniable proof of ownership in the event of infringement.
Registrations can be filed by the author or his agent in the Bahasa Indonesia language with:
The Directorate General of Intellectual Property Rights
Ministry of Law and Human Rights
Administrative of the Directorate of Copyright
Jalan H.R. Rasuna Said, Kav 8-9
Jakarta Selatan 12190, Indonesia
Tel: +62 21 579 05606
Applications cost EUR 25-35 in official fees depending on the nature of the work, agent fees vary between EUR 250 and 450.
The documents required include:
- A Declaration of Ownership (no notarisation or legalisation is required).
- A power of attorney appointing a local law firm (if the application is filed by an agent).
- Deed of assignment of copyright from the author/creator to the applicant if the right has been transferred.
- A sample of the work, i.e.:
- Books or papers (2 sets), if there are photos included, a signed statement that the person in the photos does not object to the use of his/her photograph.
- Artistic works (12 sets)
- Architecture (1 drawing)
- Photography (10 sheets)
- Computer program (2 CDs) with the manual booklet
Once the application has been files and all formalities complied with, the Indonesian Copyright Office will register the right and issue a certificate of registration.
Recent updates
Copyright law in Indonesia has recently been updated, providing clearer definitions for terms such as ‘commercial use’, ‘royalty’, and ‘compensation’ etc. These changes, together with the empowerment of Collective Management Organisations (CMOs) are likely to make a positive impact on understanding between copyright owners and law enforcement agencies, as well as between licensors and licensees. Furthermore, the introduction of landlord liability, for example at a trade venue such as a shopping mall, will likely lead to increased vigilance in the retail sector, as penalties for landlords can include hefty fines, and even jail time.[4]
The new law also allows for copyright materials to be made through an online filing system introduced by the DGIP, which should streamline the process of application for foreign companies. In the future, it is expected that this system will be extended to other types of IP such as trade marks and patents.
Enforcement
The first, and easiest option for SU SMEs in the event of discovering infringement of their copyrighted works should be the drafting and delivering of ‘warning letters’. This is especially effective when the infringer is a legitimate business, as such infringers are usually opportunistic traders selling counterfeits as part of their product mix rather than running an outright counterfeiting business. In these cases warning letters can be sufficient to create the desired deterrent effect, with most legitimate business owners preferring to desist rather than face the possibility of more severe consequences.
Copyright infringement cases can also be brought before the Indonesian civil courts. In such cases it is essential that SMEs prepare comprehensive evidence of the infringement, together with evidence of their ownership of the copyright for the materials in question. Evidence of infringement can include surveys, investigative reports or testimonies and video and tape recordings. Any overseas evidence will need to be legalised however.
Relief is provided in the form of damages and a permanent injunction against further infringement. Principles for calculating damages are not well established however and damages awards are highly variable, with considerable differences arising between different courts’ calculations.
Regardless of outcome, each party bears their own legal costs.
Criminal enforcement is an option for enforcement in Indonesia, however in practice such actions have been difficult for foreign companies due to lack of transparency in police procedures, among other factors. A new enforcement agency, the Directorate of Investigation, has recently been set up, however it still lacks the resources required to be effective in combatting piracy issues.
Whilst police in theory have the power to initiate copyright actions independently, this is very rare and generally action is only taken following the filing of a formal complaint. Initiating criminal proceedings with the police can also be very costly, with raids costing between EUR 8,000-19,000. As such, these actions should be reserved for targets which would generate maximum publicity, and therefore act as deterrent for other existing and potential infringers. Most raid simply result in the confiscation of the infringing goods with no further action. IP laws provide for substantial fines and prison sentences for infringers, up to EUR 350,000 and seven years imprisonment. However, only minor fines are usually given and there are large inconsistencies in the sentencing practices of criminal courts.
Finally, whilst Indonesian customs authorities do not offer any registration system for monitoring and seizure purposes, officials do have the power to suspend a consignment if they have reason to believe it contains counterfeit goods. Such seizures are not common however, often due to the lack of procedure or direct avenue of communication available to rights owners even if counterfeits are suspected.
[1] DG Trade, European Commission
[2] For more information on these treaties visit the World Intellectual Property Organization (WIPO) website: www.wipo.int/portal/index.html.en
[3] www.wipo.int/treaties/en/ip/berne
[4] Read more here: http://www.tilleke.com/resources/indonesia%E2%80%99s-new-copyright-law-highlights