By: Iman Sjahputra SH, SpN, LL.M

The conflict between the Institute of Indonesian Copyright (YKCI) and the Association of the Indonesian Recording Industry (ASIRI) seems yet to finish. Why is that?  Because both parties are consistent on their opinion whether or not YKCI is entitled to collect the royalty. 

YKCI claims that they have the right to collect the royalty on every publication and multiplication of the song in whatever forms and to whomever. The reason is that because they represent the composers locally or overseas. The principle is that YKCI has been delegated with the power from the composers. Therefore YKCI claims that they have the right to collect royalty from whoever multiply and publish the composers’ songs.

At the other hand, ASIRI opposes against the collection of the royalty done by YKCI. ASIRI has many arguments, and one of them is how far is the authority and right been delegated to YKCI to collect the royalty from the communities, especially the recording producers and song lovers? We know that so far YKCI has collected the royalty to many businessmen.

For the businessmen, recording producers, YKCI has the right to collect royalty in relation to the copyright multiplication since this businessman is publishing and multiplying the recording, for an example in the forms of cassette, disc, CD or other forms to be marketed.

While the businessmen of restaurants, hotels, karaoke, cafes and malls, although they have bought the cassette, CD and VCD from the market, but whenever the multiplication is played for commercial purposes for the interest of their businesses. The question is, do they are obliged to pay the royalty? It is very clear that legally the buyer of the cassette, CD, VCD who accidentally are the conductor of the amusement business, restaurant or malls are only being permitted to enjoy the composers’ songs in private/personally.

They are not allowed to publicly publish or broadcast, which means it is done commercially. This Definition is shown in Article 2 paragraph 2 (Law No. 19 Year 2002 on Copyright) which stipulates :

“A Creator or the holder of Copyright on the cinematography works and computer program owned the right to give or to prohibit other person who without his permission renting the said creation for the commercial interest”.         

Based on this law, YKCI may be able to collect the royalty from the businessmen. What is the amount of the collection which allowed to be collected and how far the collection can be demanded  is depend to the agreement of the businessman with the YKCI, because in this matter is regulated by the civil law which involving both parties.

Bound on the Agreement Law.

YKCI who calls him self as the collection societies who has obtained the permits or powers from the composers may not force their own opinion to decide of the amount of royalty one sided or as they like. The amount of royalty has to be based on the mutual agreement as governed under the civil law agreement.

It is a mistake and not permitted if the businessman does not pay the royalty, then the law enforcer/police officer interfere this civil matter by halting and raiding the hotels, amusement places, cafes or malls. The authority of YKCI to collect the royalty is not different with a law firm in representing their client in the debt collection case. It shall be based on a special Power of Attorney.

Therefore, in case YKCI has not been delegated with the power from the composer to arrange the royalty, then YKCI legally is not entitled to collect the royalty. Moreover the Law on Copyright it self never delegates this role/right to the institution such as YKCI to conduct and manage the composer’s royalty rights. Therefore, the YKCI interest shall be based on a written Power of Attorney, afterwards then YKCI is entitled to take legal action.

As a reference, YKCI in this country might copy the ASCAP (American Society of Composers, Authors and Publishers) as an institution of the composers, writers and publishers which was established on 1914 in the USA. As a reference, within four years lately ASCAP has divided the royalty of $2,2 billion to its members. It means, all the members of ASAP can life wealthy. The members of composers are not necessarily to hesitate since there is a body that represents and manages their wealth.

How about the YKCI?  It may be need a legal basis to collect the royalty by amending the Law on Copyright. Do we have to cry on our fate, such as Indro in the Warkop group who always pressed on payment of the royalty from the producers who has presented his film so many times to the public without knowing when his royalty will be distributed?  

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