By: Iman Sjahputra, SH, SpN, LL.M *)

      Law No.19 Year 2002 concerning Copyright should have brought fresh wind in the protection of copyright in Indonesia.  But, does the law have forcing power so that this country is no longer called “heaven for pirating”?

      In fact it does not! The fact that the wide spreading of copyright pirate in this country may be not merely due to low commitment of legal enforcement.  There is other aspect causing wide spreading of copyright pirate in this country.  It may be due to low awareness and legal knowledge in the field of Intellectual Property Right (IPR) and also due to low buying capacity of the people due to economic crisis which hit Indonesia.

      Therefore copyright violation in Indonesia become spreading.  This can be proven starting from luxury mall until dirty traditional market where various pirated copyright can be found easily.  The products pirated also various.  Ranging from computer, book, cassette, digital video disc (DVD), software and up to household products such as apparel  and bag can be found easily at a very much lower price that the original ones.

      You also do not have to be worry when you buy the pirated product, because beside the price is low, the quality sometimes not lower than that of the original ones.  It means that the buyer may not damaged too much by the pirated products.  But don't forget that behind the sales of the pirated product, there are other parties that are damaged.  Of course the most suffering is the holder of the IPR.

      For a holder of IP right, let’s say a song creator legally has two essential rights protected by Law of Copyright, namely economic and moral rights.  Economic right is a right to enjoy a copyright in the form financial, thus if he is successful in creating a song then legally he is entitled to receive royalty from the party who uses or records his song.

      A royalty in the form of money is given to a creator when using his/her copyright and the form of agreement between the creator and the producer is civil contract in the form of license agreement.

      Therefore provision of agreement as stipulated in Civil Code, among other Article 1320 regarding validity of an agreement, Article 1338 regarding agreement with good faith and Article 1313 concerning agreement (all provisions in civil code become the basis for entering license agreement).

      It is up to the parties how they stipulate their agreement provided it is not in contrary to the prevailing laws, license agreement between a song creator and recording house for example give exclusive right to the producer to the recording producer to produce or distribute the recording or the picture of the show (Article 49 of Copyright Law) and on the other hand the song creator will receive royalty from the recoding.  It may happen that a song that has been recorded by recording house then for its marketing, sales, or rental to third party, the proceeds from the sales, rental and marketing of the product will become the right of the producer, not the right of the song creator.

      Further question , if third party exploit the song for commercial interest, for example when the song is played in Karaoke, movie, mall, or restaurant, does the recording house have right to bill for royalty from the buyer who use that song for business purpose? Of course not, because the producer is only given right to produce and distribute the recording.

 AGREEMENT

      While the proceeds enjoyed by third party/restaurant shall become the right of the song creator.  Thus if a song creator intends to bill royalty from the parties who use commercially the song it is the right of the song creator.  In practice it is quite seldom a song creator can relate with end user.

      Therefore the song creator empowers third party or an organization to enter agreement for using of songs.  In that matter it is the interest of both parties which does not damage a party.  But if the agreements only unilateral meaning that the song creator determine certain figure or certain royalty from the end user of the song, the agreement is in valid because there is element of force.  Legally such an agreement can be canceled through court.  Thus even if the song creator has the royalty right but the billing cannot be made unfairly.

      Unlike with that of economic right that is owned by a creator, moral right which a creator has, he can ask third party to mention his name or nick name on a copyright.

      Further, to prevent violation of the copyright, for example the history of the life of figure which is changed by a film play director to meet commercial interest.  This matter can be prohibited by the song creator or his/her heir.

      This is in line with the philosophy of law as stipulated in Law No. 19 Year 2002 that a creator has moral right and economic right to enjoy the proceeds of his/her creation.  Thus copyright gives exclusive right of creation and as such any other person who wants to distribute or produce a copyright shall request permit from the holder of the right.

*) The writer is a practicing lawyer  of IPR in Jakarta.