"Analisa” Daily, October 29, 2007

An Article By Iman Sjahputra, SH, SpN, LL.M. *

Malaysian and Indonesian good relationship have gone in turmoil lately. There are many problems behind it such as the border case, Indonesian workers (TKI), the hitting of Indonesian karate referee, until the song case. Both countries have never had the same opinion on such problems. Even though both countries admit that they are of one origin but in fact the conflicts and problems are always spreading between the countries. We have seen of how Malaysian treat the Indonesian repeatedly, from the Ambalat case, TKI (Indonesian Immigrant Workers) up until the hitting of the Indonesian referee and the arrest and investigation of the Indonesian diplomat’s wife with a diplomatic passport by Rela Malaysia.

Most of the cases are settled with a simple word of “sorry” or “misunderstanding”. Recently, a new case has arisen where Malaysia claims that “Rasa Sayange” song used as a jingle of the Malaysian tourist campaign and broadcasted in TV as theirs. Indeed we are so confused and wondered since all this time it is known that “Rasa Sayange” song is a Malacca’s song and the creator is a Malaccan. How come our neighbor country claims the same as theirs? What is the right basis use by our origin country of Malaysia to claim the copyright of this song? The answer could be from the existence of evidences and facts.

To claim of a creation, a country or a person has to have supporting evidence, not just an idle talk. Does the Malaysian have the supporting evidence for “Rasa Sayange” song? Our kin country of Malaysia is indeed an expert in arguing because on the contrary they simply ask Indonesian country to prove that the song is an Indonesian creation. Because this is quite a problem! Although Indonesia had passed the Copyright Law since the Dutch Era of year 1912 i.e. the Auteurwets 1912, but the awareness to register the copyright was very low back then. The Indonesian composers were not realized the meaning and importance of the copyright registration. As the result there are many creations originally from Indonesia are not known of its creator. This weakness indeed could be used by the opposing party to declare that they were the creators of such creations. Is that what is expected by the Malaysian?

It is admitted that there is no obligatory rule to register a creation and the handing of a creation is also not from a registration. But at least with the existence of a copyright registration then administratively someone legally has been recognized with the existence of his creation. So in case of any conflict, someone has the evidence to decide of when and where the copyright was being published/multiplied for the first time.

In the case of “Rasa Sayange” song, Indonesia can reason that Lokananta phonograph recorder of the year 1958 could be used as an evidence. However it is questionable on who is the creator of this song?  If it is true that the Malaccan was the first party to sing this song in the form of “pantun” (traditional poetry) then it cannot be denied that the creator of this song is the Malaccan.

But again it is not so easy to prove the same. Who will become the life witnesses for the song created? Are we sure that the song had been sung on the year 1950? In case the evidence and creator cannot be found then as regulated in all countries Copyright Law to state that the copyright is in the hand of the government/country.

Now it becomes the duty of the government to claim the song. As a country of international organization, Indonesia is admitted has rectified many of the international agreement. One of the organizations where Indonesia became a member and regulated about the copyright is Bern Convention 1886. In Bern Convention, there are 3 (three) basic principles which have to be admitted and respected by the members of this organization namely “national treatment” principle where a country has to treat any foreigner in equal treatment as the local citizen. The second is “automatic protection” principle where the legal protection has to be given to the creator without any required conditions. The third is “independence of protection” where the legal protection not always has to be depended on the original country of the creator regulation.

All the three principles have to be applied by the members of Bern Convention. In case Malaysia has rectified the Bern Convention then they have to respect these principles. Malaysia country has to respect and protect the rights of the “Rasa Sayange” song creator from Indonesia. But the problem is whether we could prove that we are the creator of this song? In case we cannot do that, then what we can do? We have to let “Rasa Sayange” song to be the joint owner of both Indonesia and Malaysia”. It is a pity indeed.

* Writer is a lawyer who handles trademark, copyright and patent cases and resided in Jakarta.