By: Dr. Iman Sjahputra SH, SpN, LL.M

Indonesia as the member of World Trade Organization (WTO) has rectified many international agreements and one of those is the Trade Related Intellectual Property Rights (TRIPs) Agreement which was sponsored by the U.S.A. Each WTO member is emphasized to amend their regulations on Intellectual Property Rights (IPR) so that it in conformity with the agreement which is globally. Related to this matter, Indonesia has amended the Copyright, Trademark, Patent, Design Industry, Trade Secret and Plant Variety laws. All these regulations are regarded has fulfilled the international and TRIPs standards. But the question is, why does Indonesia still under the watch list even though its regulations have absorbed the WTO wishes? The answer is, because the legal enforcement on IPR is stagnant, if we do not want to call it halted.

We can see the data released by the entertainment industry i.e. Yayasan Karya Cipta Indonesia (the Institute of the Indonesian Copyright Works). This Institute predicts that the pirating of CD (compact disc) and cassette has created the loss of nearly Rp. 1,4 trillion annually. It is not a small amount, is it? In other word, it can be said that 90% of the circulated CD and cassette recording products are pirate products. It is not including the other industries, such as computer software and hardware. The question is, how much is loss suffered by the state and creators? How does the state respond this thing? Is the state disobeying the legal enforcement on it? As the result, we shall not be startled in case our country and nation is being expelled by the international society at any time. We believe that if it is happened then it will be big punch for the legal enforcers of this country.

Actually, the threat of expelling of Indonesia, now, is not an empty threat. The proof is, this country is rejected to be the state members of internet online transaction by Pay Pal, an institute that organizes the online payment system (payment gateway) in the U.S.A. based on the reason that Indonesia is not a safe country for internet transactions. Is it what we expect? Once or twice, as a consoler, the Police department has ransacking the kiosks, including malls, but it just like a cat and mouse game. The problem is, why is the Police department only hunting the retailers? Why do not they try to catch the person behind it? In fact, it is not a difficult task, or impossible, to find the brain behind the pirating. By simple way, it can be traced as from the retailers to the distributor. However, all of these really depend to the willingness of the law enforcers. So, to wipe out pirating, is not about whether we are able to do it or not, but it is the matter of the willingness, whether we are willing to do it or not.

Kills the Creativity.

We need to realize that the pirating has created strong effects. It is not only about the state loss from the tax income, but more than that, the pirating can kill the creativities of this nation’s sons. In case their creations are often being pirated and the pirate is not punished at all, do the creators still willing to create or produce the works?

Furthermore, aside from harming the creators, the reluctant on the legal enforcement is severely damaging the producers and businessmen. For the creators, they have spent their thought, energy and money to create something. In case of many of their works being pirated and the pirate is not given any sanction (imprisoned) by the legal enforcers, are they willing to create again? Of course they do not want to do it again. Inside their minds, the creators will think that why we have to work hard in creating the works if it is respected by the others at all. As the result, the people who are about to create a work will change their mind.

The further consequence is that Indonesia will not produce many new or famous creators, but we will more actively to take the part as the end user and always depends on the other world creators, such as U.S.A. and Japan where both countries fully respect IPR. If this is really happened then our country will never be standing tall as the other countries. Besides that, as mentioned above, the non existence of new work invention or creation of our nation’s son has made this country not able to compete globally. As the consequence, we will be like a buffalo that always obey and go with the bad name addressed by the other countries. So when will we have a strong offer power in this global world. Shall we always be called as a heaven pirate country?!

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