By : Dr. Iman Sjahputra, SH, Sp.N, LL.M 

The legal cases in the Intellectual Property Rights (IPR) are “lustrous” in Indonesia.  These conflicts in the IPR field are started from the low appreciation and award of the IPR in this country.  Indeed a communal society background for a country like Indonesia is certainly different with the paradigm of an individual society background such as the western communities.  In such case, sometimes the society with its strong communal background unaware that they have a point of view that is much different with the individual society about an invention or copyright as result of individual or group creation.

However in this global era, while the Indonesian communities are entering into the world community and at once as a member of World Trade Organization (WTO) that has rectified many agreements and international consensus related to the IPR field such as the Trade Related Aspects of Intellectual Property Rights (TRIPS) then the of the obscenities in the IPR field should not happened again.

In fact, the sad stories on the infringements or conflicts in this IPR field are still existed.  We can see recent case of the struggling of Suyadi who is famously known as “Pak Raden”.  Pak Raden is living economically with great concern even though his creation of “si Unyil” puppet that was filmed by Television of the Republic of Indonesia (TVRI) on 1970 was very popular.  The film of si Unyil puppet was praised by the viewers, especially the kids.

The substance of Pak Raden struggling is clearly for the royalty for his creation, si Unyil puppet, which he never benefited especially in supporting his family’s economy whereas we understood that in IPR there are, especially, moral rights and economic rights that can be compensated in the royalty to the creator.  Since Pak Raden lives inside a communal society then Pak Raden at the beginning might not really care about the rights he owned.  Pak Raden was very happy with the popularity of his puppet creation, si Unyil.  Unfortunately Pak Raden did not realize that there was a party beside him as the creator who gained the profits from the moral rights and economic rights while Pak Raden was only satisfied spiritually.

Therefore this article is trying to write again that the IPR field in Indonesia consists of many kinds.  So that the communities are not confused with the legal protection in IPR fields.

Protection.

There are many kinds of IPR such as Copyright, Patent, Trademark and Industrial Design.  Therefore it might confuse the communities so sometimes we heard a confusing term, such as “to patent a trademark”.  Whereas actually a trademark is way much different with a patent and their legal regulation are also not the same.

Registering a trademark is of course different with “to patent a trademark”.  The understanding of this term in daily life can confuse its legal protection.  One example is that the protection term of the Copyright is different to the protection term of the Trademark i.e. the legal protection of a Trademark according the Trademark Law No. 15 Year 2001 is valid for ten (10) years whereas in Copyright it cannot be generalized its protection term period.  In Copyright we need to know the type of work created to know the protection term of such work because the legal protection term in the works of science, art and literature is not the same.  For a computer program, the legal protection is given for fifty (50) years commencing from the first publication time.  For a book, pamphlet and all the writing works, it is protected for the life time of the creator and it is continued for fifty (50) years after the creator passed away.  With the differences of the protection validity of a creation indeed is shall be understood by the creator, especially in a case where such work/creation is still being published.

Therefore for a creation such as si Unyil puppet, legally it shall be protected as long as the creator is still alive, plus fifty (50) years more in case of Pak Raden is passed away.  During such protection time it is not exaggerating, or even illegal, for Pak Raden to fight for his right to get the royalty for his works in creating si Unyil puppet.  It is proper for Suyadi or Pak Raden to gain the benefit from his creation either morally or economically.

Legally, he got the right to claim it which means that Pak Raden morally is entitled to demand his name as the creator to be mentioned un any program aired or published by any party (moral right), either in TV, electronic or printed medias, and he is also entitled to demand the payment for his published work (economic right).  If in fact Pak Raden has given his the Copyright to the third party to be publish it, for example to the TV media, in this case it does not mean that Pak Raden has lost his moral right.  Now it depends on how Pak Raden manages the transfer of Copyright agreement to the third party.  Even thought Pak Raden has transferred his Copyright wholly, it does not mean that Pak Raden has lost his right, because economically Pak Raden is still got the right to gain the royalty either altogether or step by step, without lessen his moral right.

* The writer is an advocate on Intellectual Property Rights domiciled in Jakarta.