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By: Info Quality Magazine*)
Some time ago, Info Quality got the chance to meet one advocate with the specialization in handling the Intellectual Property Rights matters, Iman Sjahputra, SH, Sp.N, LL.M, in Jakarta. In such meeting, Info Quality asked so many questions on IPR cases and the lack of socialization on the importance for the home industries whose products getting globally to register their marks.
During such interview, the Master of Law graduate from the American University, Washington College of Laws, U.S.A. (LL.M, 1996) confirms that the joining of Indonesia in the world global socialization relating to IPR was confirmed when Indonesia decided to become the member of World Intellectual Property Organization (WTO) on 1974. Further, Indonesia has also ratified the establishment of World Trade Organization (WTO).
In the WTO establishment agreement was attached the Trade Related Aspects of the Intellectual Property Rights (TRIPs), and then the Government and the Indonesian Legislative Assembly formed it into the Law Number 7 Year 1994.
The person who often writes in many mass media continued, after Indonesia became the member of WIPO, IPR should have been entrenched in every layer of the societies. However, not only the common society, in fact the IPR awareness of the intellectual society, who should have known IPR well, is still low.
In fact IPR has already become the trade and competitive instruments in the international trade. In case there is any country member of WTO breaches TRIPs agreement, the victimized country is justified to do something to equalize it, even the international cross retaliation is allowed to be done by the country that has been violated its right.
Therefore, the legal practitioner of Iman Sjahputra strongly criticizes the weakness of the law enforcement in this IPR field.
As the recent technology development nowadays, the problem occurs lately is the enforcement of the internet law. Using internet now the people can do so many things in life. However, the existence of internet altogether with the escalation of the technology information, is often to be described as a two shaped knife.
“In one side it can create welfares, in other side it potentially invites the illegal actions to break the law,” said by the man who born in Pematang Siantar, Sumatra Utara.
For an example, the insecure of internet transaction now can be the attention and warning for the consumers who usually using internet as a transaction media. Because attracted by the advertisement in the internet then they try to buy it using the credit card. It turns up the goods ordered is not the same as they expected, or even they are customers who had ordered and paid for the goods but never receive the goods ordered.
Where the consumers shall report it when facing this problem? Further, it raises a question, whether this clause can be applied to the businessman who is domiciled overseas? The answer is very unlikely because we do not have the regulation as one used in the Europe Union.
Iman wishes that the government soon will be able to set up a certification institute to examine the feasibility of each company who will establish an electronic transaction business and legalize it. Buying goods through internet is a common thing. In such transaction, the buyer and seller are indirectly meet one to another. The buyer just needs to read the requirements made by the seller.
This is the case raised by the managing partner of Iman Sjahputra & Partners for his doctoral thesis in the University of Padjadjaran, Bandung. Iman’s dissertation is strengthening the analyses that the common communities are often to be harmed in the electronic world. The case of Prita Mulyasari, the hospital consumer who was criminalized for sending a complaint email can be an example.
The advocate graduated from Law Faculty of University of Gadjah Mada confirms, the first thing, in electronic transaction, the consumers will always be the one who is suffered. Especially since there is a basic agreement which is made by the businessman (seller). For example, if we buy software it is always come with a standard agreement prepared by the businessman. The prospect buyer only needs to click, agree or not. There is no place for a bargaining on the transaction conditions. Meanwhile in the Article 18 of Consumer Protection Law there is a regulation prohibiting standard agreement. This agreement shall be deemed void by law. The problem is that these electronic product transactions are not only valid in Indonesia, but it is also between countries.
There shall be room to equalize the position between the businessmen and the consumers. However, there is no such thing in the electronic transaction. If it is agreed, then the transaction will be done. If not, then there will be no transaction. There is no right for the consumers to negotiate the transaction clauses. Therefore the consumers will always be the one who is suffered a lost in the electronic transactions. There is no law in Indonesia protects the consumers for such cases. In the Consumer Protection Law, there is only one article relating to this matter i.e. Article 10 that stipulates that the businessman is prohibited to offer misleading goods. While in the Internet and Electronic Transaction Law, there is not even one article which is protecting the consumers. Therefore the consumers have no power at all.
Therefore, Iman adds, in the future there should be a revision on the Consumer Protection Law, it needs to be revised in accordance with the development. This law was made in the year 1999 where at that moment the use of internet in Indonesia was not so significant, more over for the use of internet transaction. At this moment, although it may not as big as other countries, but the use of internet is spreading and the electronic transactions are getting bigger. Beside that it is necessary to add with clauses in order to be able to reach the overseas businessmen because the electronic transaction is borderless.
In the electronic transaction, there are some kinds of the consumers’ potential loss, such as the damaged or out of specification delivered goods, the goods never delivered whereas the consumers have already paid in full, fake the businessmen, etc.
“Indonesia has initiated this matter in the ASEAN forum, but it is difficult to realize it. Optimally, we only can report each case to the Trade Ministry, afterwards the Trade Ministry will send the complaint to the related country”, he said.
The efforts done by Iman Sjahputra in socializing the legal problems is through the books he wrote, such as ”Digging the Legal Justice” and his articles in some national and regional medias.