“Analisa” Daily, March 10, 2009.

An article by Iman Sjahputra, SH, SpN, LL.M. 

Indonesia goes back to the yellow light! What does it mean?  It relates to the evaluation made on the state’s obedience in giving legal protection in the field of the Intellectual Property Rights (IPR).  Indonesia is indeed cannot release himself from a stamp as a country with high IPR infringement cases.

Now the Indonesian position is being proposed to be lower from “watch list” into “priority watch list” level.  This bad news was published from the press release broadcasted by the International Intellectual Property Alliance (IPPA) published in Washington DC at end of the last April.  IIPA is the alliance of 6 (six) associations represented United States’ Industry related to the IPR protection.  The 6 (six) associations emerged in IIPA are Association of American Publisher’s Inc. (AAP), Business Software Alliance (BSA), Entertainment Software Association (ESA), Independent Film & Television Alliance, Motion Picture Association of America Inc. (MPA) and Recording Industry Association of America Inc. (RIAA).

It is the United States Trade Representative (USTR) as an Institute authorized to evaluate the world trade, including Indonesia, considers that the legal protection of IPR in Indonesia is still weak.  There are 3 (three) levels made by USTR as the measurement of IPR protection.  The first level is “watch list”. The second level is “priority watch list” where this level can be categorized as a yellow level of in IPR infringements. The third level is “foreign country”, the country included in this level can be given trade sanction by the United States.  Together with Indonesia, there are 12 (twelve) countries recommended to get the same rank as Indonesia those are Argentine, Egypt, India, China, Mexico and Thailand.  As a developing country, we believe that we felt this recommendation is very subjective.

As we know that the authority of the USTR was started from the article “Special 301” as a part of the US Trade Law intended the USTR to identify all the business partners of the US all over the world who are not giving to effective protection toward IPR.  The effective protection on the IPR, can this refer to the protection for the US trade interests only?  Therefore we kept asking what are the criteria applied by the US to evaluate the developing countries?  Is it because the great numbers of infringements such as the great numbers of infringed products circulated in the Indonesian market or the great numbers of offenses/imitating cases reported to the Police and brought before the Court?  The criteria are not clear.

However, we admit that it is very easy for us to find the imitating products in Indonesian market, for example products such as CD, VCD, DVD, computer software and counterfeit trademarks almost in many malls, supermarkets to the side road  traders all over the country.

IPR Infringements.

Then it is arisen a question, why the IPR offences often happen?  It might be because of the legal enforcement is still conducted half heartedly. We could see on how the reaction of the law officer when a counterfeiting case are being reported.  With a noble reason to protect the communities, then the said report followed up super quickly by conducting the “pro justicia” action by confiscating.  Without any bad pretension towards the legal enforcers but a “raw presumption” without careful investigation, more over directly to conduct the confiscation, eventually will critically harm the justice seekers.  Ironically in many cases such reports actually need to be examined its material justness.

For example is the recent patent criminal case conducted in the North Jakarta District Court whereas in this case a person with initial name of HH from the Indonesian Container Desiccant (ICD) is accused as the producer of the “Container Desiccant” which is similar to the product of the reporter.  In this case the Police have confiscated the products including the accused factory.  The effect is that the accused cannot manufacture the products anymore and has to cease its business activities.  However when the case was on trial the Board of the Judges decided to release the accused HH.  It is so sad that the investigator’s action in this case extremely contradicted with the court whereas the accused factory was closed already.  From the beginning of this case the investigator should take precaution and did not need to close the factory, shouldn’t him?  Our country does need to keep the economic wheel rolling, doesn’t it?

In every step it should involve well and dept considerations of the investigator in handling the case, especially for the case in the IPR field, because in the trademark, patent, copy right, design Industry or other cases, the evidencing takes a long time.  For example in order to decide whether or not there is a trademark infringement, then it is needed a well sense in the evaluation.  A jean under “Levi’s” trademark is relabeled with “Leevi”, is it regarded as forging?  The answer is fifty-fifty. It depends on the pronunciation.  “Levi’s” can be pronounced as “Lifais” or “Levis”.  On the other hand “Leevi” can be pronounced as “lifs”.  The Trademark Law No. 15 Year 2001 on the Article 6 has given a very broad subjective interpretation to the trademark examiner/police to act.  It is not different with the software pirating case where the legal officer has to act wisely in fighting against it.  But we also have to push a giant software company such Microsoft, a US company, to produce cheap software in accordance with the developing countries’ buying power such as Indonesia, and not only to push the combat against the hijacking without considering the need of the developing countries. 

If there is an equal level such this then we might hope that the Indonesia or any developing countries does not necessary to be watched again

* Writer is a lawyer and handles many Trademark, Copyright and Patent cases that domiciled in Jakarta.