As we are entering the 4.0 industrial revolution, consumers are now more likely to access information through the internet. Thus, individuals and companies have started to shift from the traditional face-to-face approach to the internet in order to showcase their products and services. However, access to information on the internet with little to no protection may result in the risk of copyright infringement.
A copyright grants authors, artists and other creators protection for their literary and artistic creations, which are generally referred to as “works”. The Berne Convention is one of the treaties that regulates copyright for many countries all over the world. Although the Berne Convention puts forward general principles on copyright laws, each country that is a contracting party of the convention has the sovereignty to establish copyright regulations that applies to their own territory.
The virtual world that exists in the internet does not recognize boundaries between countries. Any form of artworks published online may be viewed, used, duplicated, and/or modified by people living in different parts of the globe. This condition may lead to the question, “Does my artwork have legal protection overseas?”.
Copyright Law in Indonesia
Based on Law No. 28 of 2014 on Copyright (“Copyright Law”), Copyright refers to the creator’s exclusive rights that is given automatically based on a declarative principle after a work is produced in a tangible form, without reducing the restrictions as regulated by the law. The term “declarative principle” refers to the publication of the work. The exclusive rights of a copyright consists of economic rights, moral rights, and related rights.
Since Indonesia is a contracting party of the Berne Convention, the Copyright Law applies to works created by local citizens and entities established under the laws of Indonesia, as well as works owned by a foreign citizen or foreign entity. Depending on the nationality of the foreign parties, the Copyright Law applies to creations that have been published in Indonesia or in any country that is a contracting party of the Berne Convention.
Publication of Artworks
The action of making a work known by other parties is also referred as “Publishing”. Publishing of a work can be conducted by broadcasting, exhibition, either through electronic or non-electronic means, or in any other way that could enable other parties to hear or see the work produced.
At present, there is a total of 178 countries that are members of the Berne Convention. The Copyright Law acknowledges the legal protection of an artwork created by a citizen or entity from a country that is a contracting party of the Berne Convention and published within another country that is also a contracting party of the Berne Convention. The copyright protection does not depend on whether the country of origin has given its protection towards the artwork. Therefore, it is safe to say that citizens and entities from countries of the Berne Convention may have copyright protection in Indonesia.
For citizens and entities from countries that are not members of the Berne Convention, copyright protection may only apply to the creator once the work has been created and published first in Indonesia. Due to the nature of the internet, it is possible for individuals and entities in Indonesia to know or see an artwork that is published online, even if the artwork is uploaded using an electronic device located overseas. The Copyright Law does not clearly state whether an artwork that is published online constitutes as a publication within Indonesian territory, however, the creator may put forward evidences that the artwork is accessible in Indonesia or is made known in Indonesia to prove the publication aspect of the artwork.
Should the artwork fulfill the above provisions, the creator of an artwork published anywhere online may have copyright protection in Indonesia.
Actions that constitutes as copyright infringement are unauthorized actions conducted by a third party towards copyright, whether it is towards the economic rights, moral rights, and/or related rights. Depending on the act of infringement, an interested party may have several options of legal actions to take towards the prepetrator of the infringement.
Filing a Report to the Ministry of Law and Human Rights
For any copyright infringement that is conducted through electronic systems, an interested party may file a copyright infringement report to the Ministry of Law and Human Rights (“MOLHR”). The parties that may file the report are the copyright holder, owner of the related right, copyright licensee, National Collective Management Organization (“LMKN”), an association that is appointed to represent the interested party, or any other party that is appointed as a representative of the interested party.
The MOLHR will then verify the report as filed by the interested party. Based on the verification result, if the MOLHR deems that there is sufficient evidence to indicate a copyright infringement, a recommendation will be sent to the Ministry of Communication and Information (“MOCI”). The MOCI will then proceed to take down or restrict access towards the reported content.
The copyright holder may also proceed with a civil action through alternative dispute resolution, artbitration, or filing a lawsuit to the Commercial Court against the prepetrator of the infringement. The copyright holder may also demand compensation against the prepetrator for the damages inflicted due to the infringement.
In general, any copyright infringement conducted towards the economic rights of a copyright holder may constitute as a criminal act. A copyright holder may file a report to the National Police of the Republic of Indonesia for a criminal act conducted by a third party. If the act of infringement is conducted within Indonesian territory and is not in the form of piracy, the parties must conduct a mediation process prior to filing a criminal report.
Exceptions of Unauthorized Actions by Third Party
The Copyright Law states that there are several unauthorized actions by a third party that are not categorized as copyright infringement, as follows:
Actions Conducted on behalf of the Government
Any publication, distribution, or duplication of an artwork done by or on behalf of the government is not considered as copyright infringement. Further, any use, duplication and/or modification of an entire or part of an artwork is allowed so long as the source of the work is mentioned and that the work is used for safety and administration purposes in governance, legislative and judicial activities.
The Publication of an Artwork for Non-Profit Purposes
The creation and distribution of a work through information and communication technology that is not considered as a commercial activity and/or does not generate profit to the creator or any related parties does not constitute as an act of copyright infringement. It is also not considered infringement if the creator states that they do not object the creation or distribution of the work.
The Copyright Law allows any party to use, duplicate and/or modify the entirity or part of an artwork, while still providing credit to the source of the artwork, for non-profit performances that does not harm the interests of the creator.
Portraits of the Government
Duplication, publication, and/or distribution of portraits of Presidents, Vice Presidents, former President, former Vice President, National Heroes, head of state institutions, head of ministries / non ministerial government institutions, and/or head of regions are allowed in accordance to the Copyright Law. However, the party that creates the works must also consider factors of dignity and appropriateness of the works.
Educational and Research Purposes
Any party is allowed to use, duplicate and/or modify the entirity or part of an artwork for purposes in education, research, writing scientific papers, preparing reports, writing criticisms or reviewing a problem, without causing harm to the interests of the copyright holder. In this case, the source of the artwork must be mentioned.
Architectural Work Based on Technical Considerations
The Copyright Law allows modifications towards an architectural work under the grounds of technical considerations, such as changes in the area of the land that are inadequate for construction, asymmetrical positioning, changes in architectural form due to natural factors, and others.