Copyright infringement and remediesInfringing acts
What constitutes copyright infringement?
A copyright infringement occurs when:
- a party violates the moral right of the creator;
- a party exercises the economic right of the copyright holders or neighbouring rights holder without obtaining prior authorisation or permission from such holder or without paying any royalty to the collective management institution; or
- a party uses, duplicates, performs, distributes or communicates photos or portraits of any persons for a commercial purpose without obtaining authorisation from the relevant persons.
Does secondary liability exist for indirect copyright infringement? What actions incur such liability?
There is no provision in Law No. 28 of 2014 on Copyright (the Copyright Law) that specifically stipulates secondary liability. However, there is a provision stipulating that the operator of a commercial establishment is not permitted to sell or duplicate any goods resulting from the infringement of copyright or neighbouring rights in the place of establishment.
Furthermore, the Indonesian Criminal Code also stipulates that a party may be liable if he or she knowingly or intentionally provides an opportunity, assistance or effort, or information to commit a crime (such as a copyright infringement).Available remedies
What remedies are available against a copyright infringer?
A party may seek legal remedy over a copyright infringement by filing a police report and seeking settlement through an alternative dispute resolution, arbitration or commercial court. Apart from an infringement of copyright or neighbouring rights in the form of piracy, as long as the domiciles of the disputing parties are known or if they are located within the territory of the Republic of Indonesia, then they must enter into a mediation to achieve settlement before filing a criminal claim to the court.
The legal remedies that are available against a copyright infringer are as follows:
- filing a claim for compensation against the infringer if the creator, copyright holder or neighbouring rights holder suffers any loss or damage; and
- filing a claim for injunction to the commercial court to:
- request the confiscation of any work that was announced or duplicated, or confiscation of the duplication instrument used to produce works resulting from infringement of copyright; or
- cease the announcement, distribution, communication, or duplication of works resulting from infringement of copyright.
The commercial court may also issue an injunction to:
- prevent the entry of any goods suspected to be the result of an infringement of copyright or neighbouring rights into the commercial trade routes;
- withdraw from distribution and confiscate, as well as keep as evidence, goods that are suspected to be the result of an infringement of copyright or neighbouring rights;
- secure as evidence and prevent the disappearance of evidence by the infringer; and
- cease the infringement to stop further loss and damage.
The commercial court issues decisions on copyright infringement claims within 90 working days of a claim’s filing date.Limitation period
Is there a time limit for seeking remedies?
Are monetary damages available for copyright infringement?
Yes, the Copyright Law provides that a creator, copyright holder or neighbouring rights holder, or their rightful heir, who suffers damage is entitled to receive compensation. The compensation shall be given based on a final and binding decision of a civil or criminal court.Attorneys’ fees and costs
Can attorneys’ fees and costs be claimed in an action for copyright infringement?
No. Based on the Indonesian Civil Procedural Law, attorneys’ fees and costs will be imposed on the party that receives the legal service from the relevant attorney.Criminal enforcement
Are there criminal copyright provisions? What are they?
Yes. Criminal copyright provisions are stipulated in the Copyright Law. Penalties range from imprisonment of up to one year to 10 years and a fine of up to 100 million rupiahs to 4 billion rupiahs depending on the type and severity of the crime. For example:
- violating the economic right of a creator or copyright holder by leasing a copyrighted work for commercial purposes without authorisation carries the penalty of imprisonment of up to one year or a fine of up to 100 million rupiahs, or both; and
- violating the economic right of a broadcasting institution by rebroadcasting, communicating, fixating or duplicating a broadcast for commercial purposes without authorisation carries the penalty of imprisonment of up to four years or a fine of up to 1 billion rupiahs, or both.
Are there any specific liabilities, remedies or defences for online copyright infringement?
The only specific remedy or defence for an online infringement is to make a report of such infringement to the Directorate General of Intellectual Property (DGIP). In this regard, the DGIP will then examine the report to verify its validity. If there is sufficient evidence based on the verification, the DGIP, upon the request of the applicant, will make a recommendation to the Ministry of Technology and Information to block the content or access to the perpetrator’s website.Prevention measures
How may copyright infringement be prevented (including, for example, customs enforcement measures and any technological notable developments)?
Although it is difficult to prevent copyright infringement in its entirety, there are steps that can be taken to minimise it, such as to conduct socialisation and provide education to the public regarding copyright. The aim is to increase the public’s understanding and awareness of copyright, which in turn, will foster an understanding other people’s intellectual property.
Another action is to increase the level of enforcement under the Copyright Law, specifically the provisions on copyright infringement, to cause a deterrent effect in society. Strict enforcement will encourage the public not to commit copyright infringement.
In 2017, the Indonesian government enacted Government Regulation No. 20 of 2017 on the Control of Import and Export of Goods Allegedly Constituted or Deriving from Intellectual Property Infringement and its implementing regulation, the Minister of Finance Regulation No. 40/PMK.04/2018 on Customs Recordation, Preventive Measures, Guarantees, Suspension, Monitoring and Evaluation of Import and Export Control of Goods Suspected of Infringing Intellectual Property Rights. Both regulations, which specifically apply to copyright and trademarks, allow intellectual property holders to record their copyrighted works at the customs office. The aim of this recordation is to ensure that these holders are protected and have solid grounds for stopping the import or export of counterfeit goods that infringe their copyright or trademark.
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