By : Iman Sjahputra, SH., SPN. LL.M.

Mbah (Grandpa) Surip‘s song “Tak Gendong” is so close to the heart of the people of in this country. Young or old, from children to the adults are for sure able to sing part of the song or the lyrics containing a philosophical request of being togetherness and helping each others.

We are of course proud of the works of Mbah Surip who has just left us. On the other hand, we are very annoyed with argumentations which is flip on the Malaysian who claims on pendet dance. Is the problem so complicated and what the legal consequences of the song “Tak Gendong” after Mbah Surip passed away? Will become a problem in future like that of Pendet dance? The artist world has now become regional in nature which is full of hope and promising.

Becoming an artist nowadays has been the dream of many people in this country. The glittering world which is full of colors of luxury and life style of the artists which often causes jealousy among the ordinary people.

Therefore it is no wonder that many people queuing for applying to become an artist, so they can become famous, or becoming a star or a megastar. However to be an artist is sometimes hard and not easy as needs a talent, and there must also the support of electronic media such as TV and printing media which very much help. Therefore sometimes we can see the career of an artist is so fast rising and there are many which is ordinary, which need time to lift up their career.

For an artist who is on in his/her high carrier and success, commonly are of very good fortune. They will get opportunities to perform to act, stage, and star or in widescreen film. One of the examples is Mbah Surip, born as Urip Achmad Rijanto, an artist of stage, singer and a song writer who has formerly has gone around the world and offered his copy of songs to many recording companies to be published, but no success was hit.

Many recording companies/producers had refused his creation since they thought it would not be sellable in the market at the time. No one had guested that the song “Tak Gendong” has became top hit recently and the selling result of the RBT (Ring back tone) of the private customer reached billion rupiah? Isn’t it wonderful?

It is a pity that the stage artist, the writer of the song ”Tak Gendong” died on August 4, 2009. He died and leaving his heir and the inheritance of royalties which is uncounted amount. Legally the inheritance right should be counted. For a song writer there are 2 (two) rights which is stick to him based to the copyright law No. 19 year 2002, that is Moral right and economical right. Moral Right is the right of the writer to ask to the publisher/recorder/publisher to affix the name of the writer in the media which publishes it.

For an example Mbah Surip “Tak Gendong” song , even if he has passed away, his heir should be able to ask the publisher/recorder who is assumed to be the recorder/publisher of his creation to affix the name of Mbah Surip on the cover of CD (compact disc), books, or pamphlets which is circulated as the creator. While the economical right is a right to exploit the works which is created. That means that in case of “Tak Gendong” song which is used for an example by telephone provider to be used as a RBT, the said company shall be liable to pay for royalty to Mbah Surip’s heir. Of course the heirs should proof that they are Mbah Surip’s heirs legally. For the said proving, there should be a document which confirms that Mbah Surip is the creator of the song. Either a Certificate from the Directorate of Copy right or a piece of paper which contains the scratch of the poetry.

It is legally the Copy right Law does not oblige someone to register a copy right, because copy right registration is not an obligation. However in practice the police always demand to the song writer to give the authentic evidence on his/her creation. The aim would be to ease in the investigation of a violation of copy right. Because from the beginning the police has to prove as to who is the writer, then proceed the investigation. Even though a registration of a creation is only an administrative in nature (not legally an obligation), an original creation is very important. A creation is a very important. A copyright can not be looked at on whether or not there is similarity in principle, as in the trademark law, but on its originality. Look at how the Malaysian claims that they are the creator of Pendet dance?

The question is does the Pendet dance originates from Malaysia or Bali island, as it has been known since long time ago by the community? It is okay that Malaysia claim that it is their creation ? However, has the dance, Tari Pendet been modified by them? Are there any elements of its originality ?

We should not debate unnecessarily with our neighbor. More important is, if we can prove that from the beginning that the dance was from Indonesia, even though this case being brought to wherever, even though to the institution, the World Property organization – World Intellectual Property (WPO) Or even to the World Intellectual Property Organization (WIPO). We do not need to worry. The important thing is that we must e able to prove that our peoplewas the creator. And the winning should be in our hand. Therefore we do not nee to worry so much, like the Mbah Surip heir, and also the Indonesian, on the Malaysian claim. It is so simple, isn’t it ?