Copyright in Indonesia

Legislation and enforcement

What is the relevant legislation?

The current legislation for copyright in Indonesia is Law Number 28 of 2014 on Copyright (the Copyright Law).

Who enforces it?

The Indonesian government, mainly through the Directorate General of Intellectual Property (DGIP) under the Ministry of Law and Human Rights of the Republic of Indonesia (MOLHR).

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

No. Moreover, the applicable law pertaining to electronic information, namely Law No. 11 of 2008 on Electronic Transaction and Information, strictly states that any electronic information or documents compiled to be an intellectual work, website or any intellectual work contained thereof are protected as an intellectual property based on the relevant prevailing laws and regulations.

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

No.

Is there a centralised copyright agency? What does this agency do?

The DGIP is the centralised intellectual property agency that deals with all administrative work with respect to the recordation, assignment and licensing of copyright. Within the DGIP, the Directorate of Copyright and Industrial Design deals specifically with copyright, and its duties are as follows:

• to prepare the drafting and implementation of policies;
• to provide technical assistance and supervision; and
• to evaluate and report the application, publication, examination, certification, documentation, and provision of customer service for copyright, neighbouring rights and industrial design.

Subject matter and scope of copyright

What types of works may be protected by copyright?

Under the Copyright Law, copyright protects any work in the field of science, art and literature. The Copyright Law then further specifies the specific types of work that are protected by copyright in Indonesia:

• books, pamphlets, typographical arrangement (namely, the artistic aspect with respect to the composition and shape of literary works), and all other literary works;
• public talks, lectures, speeches and other similar works;
• visual aids made for educational and scientific purposes;
• songs and music with or without lyrics;
• dramatic works, musical dramas, dances, choreography, puppet shows and pantomimes;
• fine art works in all forms such as paintings, drawings, engravings, calligraphy, sculptures, statues or collages;
• applied art works;
• architectural works;
• maps;
• batik art works or other pattern and motive arts;
• photographic works;
• portraits;
• cinematographic works;
• translations, interpretations, alterations, anthologies, databases, adaptations, arrangements, modifications and other works resulting from a transformation;
• translations, adaptations, arrangements, transformations or modifications of traditional cultural expressions;
• compilation of work or data, whether in a format that can be read by a computer program or by any other media;
• compilation of traditional cultural expressions provided that the compilation is an original work;
• video games; and
• computer programs.

What types of rights are covered by copyright?

The Copyright Law protects three types of rights: moral, economic and neighbouring rights.

Moral rights are the inherent right given to the creator of the work to:

• put or omit his or her name in the copies of the work with respect to the use of his or her work in public;
• use his or her alias or pseudonym;
• change his or her work in accordance with public propriety;
• change the title and sub-title of the work; and
• defend his or her right in the case of any distortion, mutilation, or modification, or any other actions that harm his or her reputation.

Economic right is the exclusive right of a creator or copyright holder to obtain economic benefit from his or her work by:

• publishing his or her work;
• duplicating his or her work into any shape, form and format;
• translating his or her work;
• making adaptations, arrangements or transformations of his or her work;
• distributing his or her work or the copies thereof;
• displaying/showing his or her work;
• announcing his or her work;
• communicating his or her work; and
• leasing out his or her work.

Meanwhile, neighbouring rights are the rights related to copyright, which constitute exclusive rights including the moral and economic right of a performer, and the economic right of a phonogram producer and broadcasting institutions.

What may not be protected by copyright?

There are three types of work that cannot be protected by a copyright:

• any work that has not been manifested in a concrete form;
• any idea, procedure, system, method, concept, principal, invention or data, even though it has been disclosed, stated, described, explained, or incorporated into a work; and
• any tools, objects or products that are created solely to solve technical problems or those that are formed only to meet functional needs.

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

Under the Copyright Law, there are specific articles on limitation of copyright use and anything that falls within such limitations would not be considered as copyright infringement. The standards used to determine whether a particular use is considered as fair is governed under the Copyright Law.

Are architectural works protected by copyright? How?

Yes, architectural works are protected under the Copyright Law. ‘Architectural works’ include the:

• physical form of the building;
• placement of the building location;
• designs and technical sketches of the building; and
• models or miniatures of the building.

The procedure for protecting architectural works is the same as the procedure to protect other works; that is, protection is automatically obtained based on a declaration by the owner of the work.

There is a limitation on the protection of architectural works under the Copyright Law, whereby any alteration to architectural works would not be deemed as copyright infringement if it is conducted based on technical considerations. Technical considerations include, among other things, any change in the measurement of the land due to insufficient acreage, non-symmetrical position, composition of different materials and a change in architectural model due to natural factors.

Are performance rights covered by copyright? How?

Yes, performance rights are covered by copyright under the Copyright Law. Performance rights - commonly known as ‘performers’ rights’ - also consist of moral and economic rights.

The moral rights of a performer are the inherent rights of a performer, which cannot be eliminated or abolished for any reason whatsoever, even if the accompanying economic right has been assigned or transferred. Moral rights include the rights to have his or her name listed as a performer (unless agreed otherwise) and to not be subjected to any distortion, mutilation, modification of the work or any other actions that may harm his or her honour or reputation (unless agreed otherwise).

Whereas, economic rights of a performer include the rights to:

• permit or prohibit another party from broadcasting or communicating his or her performance;
• fixating his or her performances that have yet to be fixated;
• duplicating, distributing or leasing his or her fixated performance; and
• providing access to his or her fixated performance to the public.

Are other ‘neighbouring rights’ recognised? How?

Yes, neighbouring rights are recognised under the Copyright Law. These include the moral and economic rights of performers, the economic rights of phonogram producers and the economic rights of broadcasting institutions.

With respect to moral and economic rights of performers, see question 11.

With respect to the economic right of a phonogram producer, it includes the right to permit or prohibit other parties from duplicating their phonogram in any form whatsoever, distributing their original phonogram or copies thereof, leasing copies of their phonogram to the public, and providing access of their phonogram to the public.

With respect to the economic right of a broadcasting institution, it includes the right to permit or prohibit other parties from rebroadcasting, communicating, fixating or duplicating fixation of broadcasts.

Are moral rights recognised?

Yes, moral rights are recognised under the Copyright Law. (See question 7.) Furthermore, moral rights are not assignable or transferable during the creator’s lifetime. If the creator has passed away, the enforcement of the moral rights may be assigned or transferred to his or her lawful heir via a written testament or will.

Copyright formalities

Is there a requirement of copyright notice?

No.

What are the consequences for failure to use a copyright notice?

Not applicable.

Is there a requirement of copyright deposit?

No.

What are the consequences for failure to make a copyright deposit?

Not applicable.

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

Yes, the term provided in the Copyright Law is ‘recordation of copyright’ and not ‘registration of copyright’.

The application for the recordation of copyright is submitted to the DGIP by completing a standard form along with the required documents (including a sample of the relevant work). If the applicant is not the creator, then the applicant must also provide a copy of the transfer of the copyright over the relevant work.

Upon receipt of the complete application, the examiner at the DGIP will examine the relevant application to determine whether the relevant work or product of neighbouring rights is the same as any other works that have been recorded in the General Records of Copyright or with other intellectual property objects. If the application is accepted, the DGIP will then issue an official recordation letter.

Under the Copyright Law, a fine art painting in the form of a logo or a distinctive sign used as a mark in the trading of goods or services or as a symbol of an organisation, business entity, or legal entity cannot be recorded as a copyright with the DGIP.

Is copyright registration mandatory?

Copyright recordation is not mandatory. The protection for a copyright automatically begins when the work is first published and manifested into a concrete form.

Nevertheless, it is prudent to file a recordation of copyright in order for the DGIP to validate the protection under a copyright, as well as to gain commercial value. This is because in practice, the purchaser or licensee of a copyrighted work will usually ask for an official statement pertaining to the ownership of such copyright from the seller or licensor.

What are the fees to apply for a copyright registration?

The fees to apply for a copyright recordation will depend on the type of work that is the subject of the application and whether the application is submitted manually or electronically.

For almost all types of work, the application fee is 400,000 rupiah (electronic submission) and 500,000 rupiah (manual submission). For a computer program or software, the application fee is 600,000 rupiah (electronic submission) and 700,000 rupiah (manual submission).

What are the consequences for failure to register a copyrighted work?

As mentioned in our answer to question number 19 above, copyright recordation is not mandatory. However, recordation of a copyright licence is mandatory and one of the requirements in applying for the recordation of a copyright licence is the proof of copyright ownership in the form of a copy of the relevant copyright recordation letter issued by the DGIP. Failure to record a copyright licence may result in such a licence not having a legal effect against third parties, which means that if there is an infringement upon such licensed copyright by a third party, the licensee is not authorised to take any legal action against such infringement.

Ownership and transfer

Who is the owner of a copyrighted work?

Unless proven otherwise, the owner of a copyrighted work (creator) is any person whose name is:

• mentioned in the work;
• stated as the creator of a work;
• mentioned in the copyright recordation letter issued by the DGIP; or
• stated in the General Record of Copyright as the creator.

May an employer own a copyrighted work made by an employee?

Yes, an employer may own a copyrighted work made by an employee. However, such ownership is not automatic by virtue of the employment relationship as the Copyright Law mandates that the creator of a work (in this case, the employee) will be the automatic owner of the copyrighted work created by him or her, unless agreed otherwise between the employer and the employee. Usually the agreement regarding the transfer of ownership of a copyrighted work from an employee to the employer is stipulated in the relevant employment agreement between them or the company regulation.

In relation to the procedure for copyright recordation as mentioned in question 18, a copy of the transfer of the copyright ownership is required if the applicant for the copyright recordation is not the creator. As such, it is advisable to have the agreement in writing.

May a hiring party own a copyrighted work made by an independent contractor?

Yes, a hiring party may own a copyrighted work made by an independent contractor. The arrangement for such ownership is the same as the arrangement between an employer and employee as referenced in question number 23 above. It is advisable for the agreement to be in writing. (See question 23.)

May a copyrighted work be co-owned?

Yes, a copyrighted work may be co-owned.

If a work comprises separate parts created by two persons or more, the person who will be regarded as the creator is the person who leads and oversees the completion of the entire creation. However, if there is no such person, then the person who compiles the entire creation will be regarded as the creator without diminishing other people’s copyright over each separate part of such creation.

Co-ownership of a copyright may also happen by virtue of a partial assignment of the economic right from the copyright holder to any other party ( or parties).

May rights be transferred?

Yes, ownership rights over a copyrighted work are transferable, either in part or whole, by way of inheritance, grant, endowment, will, written agreement, or any other means as provided under the prevailing laws and regulations. However, a creator or copyright holder may not assign or transfer the same copyright twice to a different person or entity.

In addition, the Copyright Law stipulates that a copyright over books and other literary works, songs and music (with or without lyrics) that has been assigned/transferred by virtue of an outright buyout agreement (sold flat), or timeless assignment, shall be returned to the creator or original copyright holder when the relevant arrangement has reached 25 years. The same will also apply to the performers’ economic right over songs and music in which he or she performed.

May rights be licensed?

Yes. A copyright holder or neighbouring rights holder is authorised to grant a licence to use his or her work when the protection period of the relevant work is still effective.

With regard to the licensing of a copyright, please note that there is a requirement to record a copyright licence at the DGIP. (See question 21.)

Are there compulsory licences? What are they?

Yes, compulsory licences are stipulated under the Copyright Law. However, a compulsory licence is limited to the licence to translate and duplicate works in the field of science and literature for educational or scientific purposes, as well as for research and development.

The application for a compulsory licence shall be submitted to and granted based on the DGIP’s approval. Upon receiving such application, the DGIP may:

1. require the copyright holder to translate or duplicate the relevant work by himself or herself in the territory of the Republic of Indonesia and within a specified period;
2. require the copyright holder to grant authorisation to other parties to translate or duplicate the relevant work in the territory of the Republic of Indonesia within a specified period in the event that the copyright holder is unable to conduct such action himself or herself; or
3. appoint other parties to translate or duplicate the relevant work in the event that the copyright holder is unable to carry out the actions as mentioned in point (ii).

A compulsory licence shall only be granted if three years has passed from the announcement of the relevant work and no translation or duplication of such work has been made in the territory of the Republic of Indonesia.

Are licences administered by performing rights societies? How?

Yes, pursuant to the Copyright Law, a creator, copyright holder or neighbouring rights holder must be a member of a collective management institution in order to collect their economic right and receive fair compensation from any party that uses his or her copyright and neighbouring right in a commercial manner.

Moreover, specifically for the management of royalty from songs and music, there are two national management institutions that have been formed to represent the interest of the creators and the neighbouring rights holders. These national management institutions are authorised to charge, collect and distribute royalties from the commercial users.

Is there any provision for the termination of transfers of rights?

There are no specific provisions for the termination of the transfer of right under the Copyright Law. However, there is a time limitation for copyright over books and other literary works, songs and music (with or without lyrics) that has been transferred by virtue of an outright buyout agreement or timeless assignment. (See question 26.)

Can documents evidencing transfers and other transactions be recorded with a government agency?

Yes. The DGIP organises the recordation of assignment of copyright and neighbouring rights products. However, before applying for recordation of a copyright assignment, the applicant must first record the relevant copyrighted work with the DGIP, as one of the requirements for the recordation of copyright assignment is proof of ownership of the relevant copyright in the form of a copy of the copyright recordation letter issued by the DGIP.

Duration of copyright

When does copyright protection begin?

Copyright protection over a work will automatically begin when the relevant work is first published and manifested into a concrete form.

How long does copyright protection last?

As mentioned in question 7, copyright protection consists of moral and economic rights.

The term of protection for the creator’s moral right is indefinite. Whereas, the term of protection for the creator’s economic right would depend on the type of work and number of creators or owners of such work.

The table overleaf presents the term of protection for the creator’s economic right under the Copyright Law.

Does copyright duration depend on when a particular work was created or published?

Yes. See question number 33.

Do terms of copyright have to be renewed? How?

No, they are not renewable.

Has your jurisdiction extended the term of copyright protection?

Yes. The current Copyright Law has extended the term of copyright protection from the previous copyright law, specifically on the term of protection for books, talks, visual aids, songs, choreographies, drawings, architectural works, maps, and batik art, from 50 years after the creator’s death to 70 years after the creator’s death.

Copyright infringement and remedies

What constitutes copyright infringement?

A copyright infringement means:

• any party that violates the moral right of the creator;
• any party that 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
• any party that uses, duplicates, performs, distributes, or communicates photos or portraits of any persons for a commercial purpose without obtaining any authorisation from the relevant persons.

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

There is no provision in 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 sale 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).

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 domicile 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 damages;
• filing a claim for injunction to the commercial court to:
  • request for 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.

Is there a time limit for seeking remedies?

No.

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 damages is entitled to receive compensation. The compensation shall be given based on a final and binding decision of a civil or criminal court.

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.

Are there criminal copyright provisions? What are they?

Yes. The table below provides a summary of the criminal copyright provisions stipulated in the Copyright Law.

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 DGIP. In this regard, the DGIP will then examine the report to verify its validity. If there is sufficient evidence based on the verification, then 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.

How may copyright infringement be prevented?

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. Hopefully the public’s understanding and awareness on copyright will increase through socialisation and education, which in turn, will make them appreciate 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 against committing copyright infringement in the future.

Relationship to foreign rights

Which international copyright conventions does your country belong to?

Indonesia is a member of the agreement to establish the World Trade Organization (WTO Agreement), which includes the Trade Related Aspects of Intellectual Property (TRIPS).

Indonesia then ratified the Berne Convention for the Protection of Artistic and Literary Works (Berne Convention) and the World Intellectual Property Organization Copyright Treaty in 1997 (the Copyright Treaty).

Lastly, in 2004, Indonesia also ratified the World Intellectual Property Organization Performances and Phonograms Treaty (the Phonograms Treaty).

What obligations are imposed by your country’s membership of international copyright conventions?

As a member of the WTO Agreement, Indonesia must give effect to the provisions of the TRIPS and may, but is not obliged to, implement more extensive protection in their local law than what is required by the TRIPS, provided that such protection does not contravene the provisions of the TRIPS.

As a country that ratified the Berne Convention, Indonesia must adopt, in accordance with its constitution, the measures necessary to ensure the application of the Berne Convention. Taking into consideration the prevailing legislation and constitution, Indonesia does not consider itself to be bound by the provision of article 33 (1) of the Berne Convention.

Since Indonesia also ratified the Copyright Treaty, it must also abide by the rights and obligations under the Copyright Treaty.

As a member of the Phonograms Treaty, Indonesia must:

• provide adequate legal protection and effective legal remedies against the circumvention of technological measures by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and which restrict acts, in respect of their performances or phonograms, that are not authorised by the performers or the producers of phonograms concerned or permitted by law;
• provide adequate and effective legal remedies against any person who knowingly perform any of the following acts:
  • remove or alter any electronic rights management information without any authority; and
  • distribute, import for distribution, broadcast, communicate or make available to the public, without authority, performances, copies of fixed performances or phonograms knowing that electronic rights management information has been removed or altered without authority.