By: Dr. Iman Sjahputra SH, SpN, LL.M

Pirating in Indonesia is like a disease. Jakarta is the first rank in the circulation of pirating books. The pirating books are varied whereas university education book is the first ranking, followed with best seller books. Until today there is no accurate figure on how much money has been suffered by the publishers and the book writers. However, the scream and complain from the Head of the Pirating Tackling Team on Indonesian Book Publishers Association (PMPB IKAPI), R. Harry, is the evidence whereas according to him, within a week after a book being published by the publisher we can find the pirating books are already widely circulated.

How can this happen? That is caused by the regulation holes and the weak law enforcement. There is no harsh action applied toward the pirating doer who actively pirating the books. It is very easy for us to find people selling pirating books in the book kiosks, street shops until the corner of the intersections. In some place people feel free to duplicate (photocopy) or reproduce books, literatures or education books without any worries. Whereas in fact legally the wrong doer (person who reproduce, including duplicate, copy, distribute and sell) can be qualified as breaking someone’s copyright.

The Law No. 19 Year 2002 on Copyright actually gives the protection of right to the writer/creator/publisher on the works they are produced. The right refers to the rights given to the writer i.e. economical and moral rights, and the right to multiply and publish of the publisher which shall be respected by the others. Any person who violates this right can be sanctioned with criminal sanction as stipulated in the Article 72 (1) and (2) of the Copyright Law. But in fact, the right given to the writers and publishers is not being respected until today. In plain sight we can easily find the pirating books in the market and the communities them selves are easily reproduce the books/reading books/writings without giving any attention on the rights of the writers/ publishers.

As the result, royalty and profit rights expected by the creators/publishers never been achieved. For Indonesia, until today there is no legitimate institute who represents the creators and publishers on the royalty matters. Royalty matters are handed over to the creators and publishers and the communities who need such creation to manage it. Therefore in case they found any pirating books in the market then the related writer (creator) or publisher shall come and sue the copyright violator.

In that case, it is the same that from the regulation and financial aspects the writers and publishers are very weak. The Copyright Law it self has not yet recognized the existence of the legal institution to represent the creators/writers/publishers on the royalty rights. In fact such institution is very important. If such legal institution is established then it can represent the creators and publishers on the royalty rights and it will be very much a help. Because such institution will be able to act in the name of the writers/creators/publishers to conduct a negotiation with the third parties i.e. libraries, schools/universities or book shops who market the writer/publisher’s books in the forms of being licensed, sold, copied or read by the public, university/school students, interested person on such book/magazine/newspaper.

This institution is more emphasizing on the royalty of the writers/publishers to be properly channeled. By the existence of this institution, the right of the writers/publishers can be guaranteed and in case it is found the pirating books or the violation of the writers’ copyright then this institution shall has a big role. Such institution in some countries is known as the collective management institution. This institution is not a state institute, but it is recognized and supported by the state because this institution has a very important role to prevent or at least minimizing the copyright infringement. Some of the examples of the collective management are International Federation of Reprographic Reproduction Organization (IFRRO), Association of European Performers Organization (AEPO) and International Confederation of Societies of Author and Composers (CISAC). These institutions have been established for decades and recognized by the government of the countries involved.

With the existence of collective management the rights of the writers/creators/publishers can be protected. Furthermore, the economic life of the creators can be more prosperous and wealthy. The positive aspect, the creators will be more energetic in doing the works. The willing to write and create is bigger. So, will Indonesia speed up in establishing such institution as of collective management? Or shall we have to wait until the Copyright Law is being revised first!

*) Writer is an advocate domiciled in Jakarta who handles many Trademark, Patent and Copyright cases.