The Indonesian government has implemented the replacement of Law No. 14 of 2001 concerning Patent to become Law no. 13 of 2016 on Patents since one year ago. The substitution of this law is an effort of a preference approach to the National interests of Indonesia without violating international principles. From this replacement of this law, the Law no. 13 of 2016 focus on the regulation in a way how Indonesia can be more real in implementing technology transfer activities among parties within the country including foreign parties and domestic and vice versa. With the transfer of technology, it is expected thatthe acceleration of the nation’s competitiveness can be realized soon.

 

Transfer of Technology Policy in Indonesia

 

Indonesia is a country that currently has not optimally encouraged the development of technology towards the improvement of the mastery and utilization of technology. This in turn has an impact on Indonesia’s weak competitiveness. This can be seen from the 2017 Global Innovation Index report. Indonesia’s innovation ranking is in position 87 of 127 countries. In ASEAN region, Indonesia’s position is far below Malaysia which is in position 37 and Vietnam at rank 47. Based on Global Competitiveness Index data from World Economic Forum 2016-2017, Indonesia ranked 41st from 138 countries with pillar of innovation ranked 31, in subpillar innovation capacity Indonesia ranked 32nd, while in subpillar of high-tech government spending Indonesia ranked 12th, and the Indonesia rank for international patent subpillar was 99th.

 

From the data above, shows the development of Indonesian technology has not shown the encouraging condition. As for many causes, for instanse, the matter on transfer of technology policy in Indonesia has not real and progressive. Some policies have been used as a legal basis to encourage transfer of technology, such as; the Law no. 25 Year 2007 regarding Investment and the Law no. 18 of 2002 on National System of Research, Development and Application of Science and Technology. In Article 10 paragraph (4) of Law no. 25 Year 2007 states: “Investment companies employing foreign workers are required to conduct training and transfer of technology to Indonesian citizens in accordance with the provisions of applicable legislation.” Furthermore, in Article 16 paragraph (1) of Law no. 18 Year 2002 states: Universities and R & D institutions shall seek the transfer of intellectual property technology and the results of research and development activities, fully or partially funded by the government and / or local governments to enterprises, governments or the public to the extent not incompatible with public order and regulation.”

 

Looking at the two policies mentioned above, the government actually has a “political will” to require the implementation of transfer of technology in order to encourage the parties to master the technology either from abroad or domestic. However, those transfer of technology policiesapparantly have two weaknesses; First, the notion of technology in transfer of technology tends to have unclear meaning and seems to cover broad meaning. Therefore, the meaning of technology can be interpreted obsolete technology, current or certain period of time. Supposed the meaning of technology is interpreted as obsolete technology, thusit will be very detrimental to the National interests of the Indonesian. The Indonesian nation, therefore, will not be able to realize its competitiveness through the role of technology; and Secondly, although the transfer of technology policiescover the legal obligation, it turns out that the legal obligation is not followed by sanction or it can be said as “toothless tiger”. When the parties are expected to do transfer technology, but the fact they ignore it, it seems the policies have lack of legal enforcement. This is likely to create “not-serious condition” in implementation of transfer of technology policies for the parties who mastered the technology in Indonesia.

 

Patent Law: The Breakthrough for Transfer of Technology Policy

Recognizing that transfer of technology policy in Indonesia has not been able to encourage the process of control and use of technology, therefore the government of Indonesia took another breakthroughin 2016, by accommodatingthe transfer of technology policy in Law no. 13 of 2016 on Patents. The provision of Article 20 and Article 132 of Law no. 13 Year 2016 are a proof of a very progressive breakthrough in driving the realization process of transfer of technology in Indonesia. Article 20 states: (1). “The patent holder is obligated to manufacture the product or use the process in Indonesia.” (2). Making the product or using the process referred to in paragraph (1) shall support the transfer of technology, the absorption of investment and / or the provision of employment.”Meanwhile, Article 132 paragraph (1) letter e and (4) of Law no. 13 of 2016 states: “(1). The abolishment of a patent based on a court decision as referred to in Article 130 letter b is performed if: … e. the patent holder violates the provisions referred to in Article 20.” While the paragraph (4) rules that The lawsuit for deletion as referred to in paragraph (1) letter d and e is filed by a prosecutor or other party representing the national interest to the patent holder or licensee shall be obliged to the Commercial Court.

On the basis of the provisions of Article 20 and Article 132, the commitment and the government’s willingness for the transfer of technology in Indonesia has been expressed very strong and progressive. Perhaps it can be seen from the substance of the articles that link patent provisions and transfer of technology, which the articles do not encourage the obligation of transfer of technology, but the impulse is also accompanied by the threat of sanctions to the parties who have no political will to do transfer of technology. The sanction given is not half-hearted which is the removal of the patent itself as a form of control over the exclusivity of the invention held by the patent holder.

 

Idealization of Government Attitudes

The presence of government breakthrough to push transfer of technology through adoption of its policy in Article 20 and Article 132 Law No. 13 Year 2016 apparently has caused a pro and contra reaction. The reaction have been counterproductive especially from the patent holders from abroad who in fact were the investor. This counter-foreign attitude has not only been done by investors but also involved their leaders. The reason was that the provisions of Article 20 and Article 132 of Law no. 13 Year 2016 is considered as an obstacle to the investment they have, are and will do.

With the persistence of foreign pressure to the government concerning the provisions of Article 20 and Article 132 of Law no. 13 Year 2016, the government seems to experience “chaos” commitment. This disorder can be seen that the government has responded the foreign pressure at the beginning by planning the drafting of Government Regulation (RPP). However, along with the development of time, the the plan has been shifted into a plan to amend Article 20 and Article 132 Law no. 13 of 2016.

The government attitude as explained above seems to be very apprehensive. The the government indeed should have independence in policy making, nevertheless it is shaken by the insistence of foreign parties because it is considered to inhibit their investment. Supposedly, if the government is objective, then before making amendments to Article 20 and Article 132, it is appropriate to do two things; First, the government must have objective and valid data related to transfer of technology in Indonesia. This data may be requested by the government to parties who have been considered to master of the technology, especially from foreign parties; Secondly, the government should be able to request a transfer of technology from technology rulers who can promote the competitiveness of the Indonesian nation.

 

                                              Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

 

 

Lot of hope are raised for the sector of creative economy in encouraging economic growth and prospering society at this time. Moreover, when the crisis storm hit several countries such as Europe and the United States. Expectations for the increasing role of the creative economy sector, certainly it is not enough just a one-sided action from creative economic actors, but this must also be supported by real policies and implementation from the government for the interests of the creative economy. One of the policies and implementations that are currently very important and strategic in encouraging the role of the creative economy in economic growth and community welfare is strengthening policies and the application of creative economic intellectual property rights in creative cities (Creative City).

 

IPR Policy

Intellectual Property Rights (IPR) which have been considered from a legal perspective as rights, in an economic perspective IPR can be defined as assets, especially intangible assets. Based on legal perspective of IPR, then the development of policy and implementation of IPRs carried out by the Central Government through the Directorate General of Intellectual Property Rights at the Ministry of Law and Human Rights, is very logical. However, when IPR is interpreted as an intangible asset, then the development of IPR policies by the Central Government alone is not enough. IPR policy support made by Creative City is another part that must be strengthened.

In practice, IPR policies developed in the context of the creative economy as intangible assets are still being carried out centrally by the central government. IPR policy seems to be only a central matter, while Creative City has no business in this area. As a result, various IPR problems arise in reality. Some of the IPR issues that can be identified are; First, the weakness of Creative City in educating IPR. There is often overlap in the delivery of IPR materials by government agencies, both central and Creative City, which is a clear example; Second, the lack of ownership  documentation of IPR assets by Creative City; Third, the weakness of technical staff of Creative City in facilitating the management of intellectual property rights originating from creative economy actors; Fourth, the absence of Creative City’s real assistance in resolving cases of IPR violations experienced by creative economy actors; and Fifth, the lack of IPR assets that are promoted and commercialized with the help of the active role of Creative City.

Based on the various problems above, a further consequence is the weak role of the creative economy to encourage economic growth and improve the welfare of the people in Creative City.

 

IPR Policy for Creative City

After seeing the consequences of centralized IPR policies by the Central and causing problems in practice, it is time for IPR policies to be carried out by synergizing IPR policies at the Center and Creative City. Specifically, in terms of IPR policies in Creative City, it should be oriented within the framework of managing IPR assets from creative economy products in the context of increasing economic growth and community welfare in creative cities not on granting rights.

The opportunities to implement IPR asset management policies for creative economy products in Creative City as referred to above are actually legally possible. This can be seen at least in Law no. 32 of 2004 concerning Regional Government. According to the provisions of Law no. 32/2004 it is stated that in implementing autonomy, regions have the right to manage regional assets. Then in the law it is also stated that in implementing autonomy, regions have the obligation to improve the quality of people’s lives; and develop productive resources in the region.

In other reason besides of legal reasons for making IPR asset management policies in Creative City, sociologically the need for IPR asset management policies cannot be avoided. Until today, the reality is that the creative economy products in Creative City are generally felt to have not accommodated the need for IPR protection and benefit from IPR itself.

There are three things that should become a concern of the IPR asset management policy from creative economy products, consist of; First, IPR asset management policies must be able to encourage the process of creating innovative creative economy products, Second, IPR asset management policies made must be able to facilitate documentation, registration and advocacy on IPR assets from creative economy products, so that IPR assets from economic products creative economy can be protected, and Third, the policy for managing IPR assets must be able to encourage promotion and commercialization of IPR assets from creative economy products.

In other side, the IPR management policy which includes the three things above, these three things should also be synergized each other, thus forming a system for managing IPR assets from the creative economy at Creative City. In the end, through the making of IPR asset management policies from creative economy products in Creative City, efforts to utilize IPR assets as a strategy to increase economic growth and community welfare can be realized.

 

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

 

Author: Prof. Dr. Budi Agus Riswandi, S.H., M.Hum. [2]

Introduction

The Law no. 28 of 2014 on Copyright which replaces Law no. 19 of 2002 on Copyright has given birth to new hopes for book writers regarding the legal and economic benefits that will be obtained. [1] As for the legal benefits, which is in the form of more effective copyright protection, [2] while the economic benefits are in the form of opening opportunities to exploit the economic value contained in copyright protected book creations.[3]

However, to realize  the book author’s hopes, in not enough through the existence of Law no. 28 of 2014, but it must be supported by the understanding and ability of book authors regarding governance cycle of the copyright (book). The cycle of copyright management (books) when viewed in the from the author’s perspective rests on three main aspects, consist of; creativity, exclusivity and incentives.

Book Copyright Governance Cycle

Copyright is the exclusive right of the creator that arises automatically based on declarative principles after a creation is realized in a tangible form without reducing restrictions in accordance with the provisions of laws and regulations.[4] copyright is an intangible asset.[5] Because copyright can be interpreted as material rights that are intangible, it is not surprising that copyright is needed to be managed.[6] From here, copyright management becomes very important. Copyright governance relies on three aspects, consist of: creativity, exclusivity and incentives for works. These three aspects in their relationship occur in the form of cycles. The copyright management cycle starts with creativity, exclusivity and incentives for works.

Creativity is the first cycle in copyright governance. Creativity is an opus that has a certain level of originality.[7] As is known, originality is related to whether the creator made the opus or creation. So in this context, judging whether an opus is original or not really depends on the truth of the creators who made the work. There are two possibilities to determine whether an opus is original or not. First, if the authors have strong evidence of having created the opus, then the opus is original; and Second, if some creators have solid evidence and some creators don’t, then some creators who don’t have solid evidence will be considered unoriginal.

From this understanding, for the first determination, it will only result in high and low creativity. If the embodiment is completely different, then the opus will be considered high in creativity, but if the embodiment is the same, then the opus will be considered low in creativity. Meanwhile, if some creators do not have strong evidence, then this will result in copyright infringement of a work.

The second cycle of copyright governance is exclusivity of creation. The exclusivity of an opus or creation is that a opus is created and has met the requirements of fixation, originality and creativity also is present in the fields of science, art and literature, thus automatically giving the existence to copyright. With the existence of copyright, it arises the exclusive rights. This exclusive right contains two kinds of rights, its consist of; moral rights and economic rights. Moral rights are rights inherent in the creator, while economic rights are rights to take economic benefits from creation protected by copyright. In terms of using this copyright, other parties may not use the copyright either without permission or against the law. From this situation, the exclusivity of a work can be realized.

Meanwhile, the incentive creation is a consequence of the creation that contain elements of creativity and exclusivity.[8] The incentives themselves can be in the form of economic value. This economic value can be realized in the form of money. Generally, a copyright protected work can be incentivized if it is done by licensing or trading.[9] From the existence of licensing activities or buying and selling of copyrighted works, it will generate economic value in the form of money. Herein lies the incentive for a work that contains elements of creativity and exclusivity.

After understanding the copyright management cycle, so that the books are also opus, must be approached with copyright governance cycles.[10] As is well known, books basically contain copyright. Therefore, the book should be able to treat the copyright management cycle as well. Book copyright governance cycle can refer to the description above.

Copyright Governance Implications (Books)

Looking at the cycle of book copyright management, this governance is basically very important to ensure the sustainability of the emergence of book works. In addition, the cycle of copyright management of books if implemented by book authors can have moral, legal, economic and social implications.

The cycle of copyright management of the book can have first implications for morals, which can be seen by paying attention to the importance of making books based on the values ​​of originality. By paying attention to the value of originality, the resulting book can be avoided in terms of plagiarism. The act of plagiarism itself is essentially an act that is morally forbidden. Therefore, the cycle of book copyright governance can ultimately have implications for the moral of the author.

The second implication of the book copyright governance cycle has legal implications. With the implementation of a book copyright management cycle, where one of them pays attention to the exclusivity of the opus. Certainly, it will have an impact on effective legal protection of book works. However, the exclusivity of the work confirms to others that the opus may not be used by other parties either without permission or against the law.

Another economic implications are  from the book copyright governance cycle. As is well known, books are opus that can be exploited economically through reproduction, announcements, and adaptations.[11] With the opus of books being exploited economically, economic benefits will be generated by the author. The economic benefits that can be obtained in the form of money are ultimately expected to improve the economic conditions of the writer.

Others implication of the book copyright governance cycle are social implications. The cycle of book copyright governance, if explored further, will also have implications for the relationship between the author and other related parties/stakeholders. With a good relationship between the author and stakeholders, socially the cycle of book copyright governance has presented social implications.

Conclusion

The book copyright governance cycle includes aspects of creativity, exclusivity and incentives. Each of these aspects are related to each other. If the book copyright management cycle is implemented, there will be a continuous process of the book itself. The implications of the book copyright governance cycle are in the form of moral, legal, economic and social implications.

 

References

Arthur R Miller dan Michael H Davis, Intellectual Property Patent, Trademarks, and copyright, St. Paul Minnesota: West Publishing Companym 1984.

David Brainbridge, Intellectual Property, England: Pitman Publishing, 1999.

M Hawin dan Budi Agus Riswandi, Isu-Isu Penting Hak Kekayaan Intelektual di Indonesia, Yogyakarta: Gadjah Mada University Press, 2017.

Robert C. Megantz, How to License Technology, Singapore: John Wiley & Sons, INC, 1996.

Simon Stokes, Digital Copyright Law and Practice, London : Butterworths, 2002.

Yusron Isnaeni, Hak Cipta dan Tantangannya di Era Cyberspace, Jakarta: Ghalia Indonesia, 2009.

Law Number 28 Tahun 2014 on Copyright

Law Number  19 Tahun 2002 onCopyright

 

[1] One of the copyright rules in Law Number 28 of 2014 on Copyright which provides new hope in the form of legal and economic expectations related to the regulation of Collective Management Institutions (LMK). In Law no. 28 of 2014, the issue of LMK has received a detailed and clearer regulation rather than stipulated in Law Number 19 of 2002.

[2] The protection aspects of copyright are moral rights and economic rights. Moral rights are rights inherent in creators in the form of paternity and integrity rights, while economic rights are rights to take economic advantage of the creation which is protected.

[3] David Bainbridge stated that :”Copyright provides a very useful and effective way of exploiting a works economically. It provides a mechanism for allocation of risks and income derived from the sale of the work.” Based on David Brainbridge, Intellectual Property, England: Pitman Publishing, 1999, p. 36.

[4] Article 1 point 1 Law Number 28 of 2014 on Copyright

[5] Article 16 point 1 Law Number 28 of 2014 on Copyright

[6] Copyright management is an integral part of the science of intellectual property management.

[7] Arthur R Miller dan Michael H Davis stated that:”Originality does not imply novelty, it only implies that copyright claimant did not copy from someone else.” Lihat Arthur R Miller dan Michael H Davis, Intellectual Property Patent, Trademarks, and copyright, St. Paul Minnesota: West Publishing Companym 1984, p. 289.

[8] This idea refers to the theory of copyright protection known as the incentive theory. According to incentive theory, copyright protection is an economic incentive given to creators in order to encourage creators to invest time, effort, expertise and all the resources they have for the process of making creativity. Budi Agus Riswandi, “Notes on Management of Copyright Information Management, Copyright Electronic Information and Technology Control Means in Law no. 28 of 2014,” on M Hawin and Budi Agus Riswandi, Isu-Isu Penting Hak Kekayaan Intelektual di Indonesia, Yogyakarta: Gadjah Mada University Press, 2017, p. 125.

[9] Economically exploiting intellectual property including copyright can be done by means of new ventures, acquisitions, joint ventures, licensing, strategic alliances and sales. Robert C. Megantz, How to License Technology, Singapore: John Wiley & Sons, INC, 1996, p. 1-3.

[10] Books protected by copyright are basically an expression of the ideas from literary works, which can be scientific works, poetry, pictures, legends and so on. Literary works that are poured into the form of books include those protected by copyright. However, other works that are protected by copyright are not only literary works, but works in the fields of art and science are also protected by copyright. In the UK works protected by copyright under the Copyright, Designs and Patent Act 1988 (CDPA) consist of: original literary works; original dramatic works; original artistic works; sound recordings, films, broadcasts and cable programmes; and the typographical arrangement of published edition. See Simon Stokes, Digital Copyright Law and Practice, London : Butterworths, 2002, p. 24

[11] This mechanism is known as exploitation of creator rights. Some of the rights of creators whose economic benefits can be withdrawn are: reproduction rights, adaptation rights, distribution rights, performance rights, broadcasting rights, cable program rights, droit de suite, and community borrowing rights. On Yusron Isnaeni, Hak Cipta dan Tantangannya di Era Cyberspace, Jakarta: Ghalia Indonesia, 2009, p. 20-21.

 

The news on this week in media and electronic media has something interesting besides the plane crash of the Sukhoi SSJ 100 case. The news is in the form of several musicians and creators of music and national songs coming to the DPR to convey their aspirations related to the protection of music copyrights and song on the internet which is felt very serious right now. It can even threaten the sustainability of the Indonesian music industry.

Online Music and Songs

As is known, Indonesia as a legal state is actually a country that has had copyright law provisions since the days of the Dutch East Indies. This is proven by Indonesia during the Dutch East Indies era that had a copyright law called Autherwet 1912. Now, copyright law in Indonesia has undergone changes until finally it came to Law number 19 of 2002 concerning Copyright. Law number 19 of 2002 is a form of accommodation for two things. First, accommodation for the ratification of the WIPO Copyrights Treaty and the World Ponogram and Performance Treaty. These conventions are known as Internet Treaties; Second, accommodation for the rapid development of science and technology, such as the development of internet technology, is another factor in changing Indonesian copyright law.

Considering the substance of Law number. 19 of 2002, it is very clear that the Copyright Law was enacted to protect one of the creations of music and songs. Actually, there is something very progressive from the enactment of Law no. 19 of 2002, where copyright protection for music and songs is not only found in the real world (real world), but also covers copyright protection in the virtual world (virtual world). This can be found in one of the provisions that explain the meaning of announcements as regulated in Article 1 of Law no. 19 of 2002 basically the announcement of creations does not only reach in the real world area, but also in the virtual world area.

Therefore, what is requested by musicians and music and song creators on the proposal to block sites that practice illegal downloading of music and songs that are commercial in nature and harm them economically to the DPR is an effort that is legitimate to do in the context of get an optimal and effective copyright protection, although they should also do the legal process within the framework of legal learning.

Lagal Studies

Managing Director of Sony Music Entertainment Indonesia,  Totok Widjojo, is  stated the total download of illegal songs on one site in Indonesia could reach 6 million times per day. If one download is valued at IDR 1,000, the loss reaches IDR 6 billion per day (indotelko, 2012).

Based on the data, it seems that musicians and music and song creators are starting to look for ways to minimize losses caused by illegal downloading practices. There are two ways that can be taken to minimize these losses, which is through legal or political processes. It seems that in this context what is chosen is the political process. Then the question is, “why is the legal process not carried out by musicians and music and song creators?”  Perhaps the answer to this question is not really difficult because the reality of law enforcement in our country still shows a bad face.

However, despite the bad reality of law enforcement, there are things that musicians and music creators should play in encouraging good law enforcement. One of these roles is through legal learning to law enforcement officers and the public by taking legal action on the cases they face. It is true that musicians and songwriters have the notion that handling cases through the legal process is a form of wasting energy and materials, but from a legal perspective, what musicians and songwriters do can have a positive impact on improving law enforcement.

At least, when the case is entered into the legal process, law enforcement officers will be required to be able to resolve the case properly and fairly. The implication of this demand is that law enforcement officers will be encouraged to find out whether scientifically or practically understand this case and understand how to solve it. Realize it or not, law enforcement officers are slowly being pushed to improve their competence and professionalism. In another, if from this legal process a good and quality legal decision can be born, then this can be used as reference material for subsequent law enforcement processes.

Meanwhile, for the society with the adoption of this case through a legal process, they become aware that the act of illegal downloading contains elements of a violation of the law and causes harm to musicians, the government and the community itself.

Wallahualam bis Shawab.

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta