This will repeal the old Copyright Act no. 19 of 2002 and contains significant amendments and clarifications of some previous ambiguities under the old Law.
The following provisions are of particular interest:
Type of protected works
The definition of protected work has been expanded to include translations, adaptations, arrangements, transformations, or modifications of traditional cultural expressions as well as compilation of traditional culture.
Under the old law, the explanatory notes state that drawings for the purpose of industrial designs are excluded. In the new law, such exclusion has been deleted from the explanatory notes, suggesting that it may now be possible to claim for copyright protection even for industrial designs.
Under the old law, exclusive rights are divided into rights of publication and reproduction.The new law introduces the term economic rights to encompass the following exclusive rights:
- Publishing work
- Duplicating any kind of work
- Translating work
- Adapting, arranging, transforming work
- Distributing work and its copy
- Performing a work
- Informing a work
- Communicating work
- Rental of work
The old law included "importation" as one of the exclusive rights. This is now removed which suggests that parallel importation no longer requires consent of the copyright owner.
Under the old law, although copyright was expressly deemed as a movable property. Under the new law, there are express provisions that recognize that copyright works may be registered as collateral under fiducia security. This suggests that copyright work can now be pledged as a security.
Duration of protection
Copyright protection of works has been extended from 50 years to 70 years after the death of the author, unless the work is owned by a legal entity in which case the period of protection still remains the same - 50 years from publication.
In addition to the ability to enforce the expanded economic rights, there is the welcome provision of the creation of landlord liability.
In respect of online infringement, there is also now a dedicated section that gives new powers to the Ministry of Information to block access to infringing material on websites. The implementation of this provision requires further regulations to be passed. Depending on what the regulations requires, it may provide copyright owners with additional tools to tackle online infringement.
Complaint based offence
Copyright infringement is now classified as a complaint based crime, bringing it in line with all other IP rights – trademarks, industrial designs and patents. The advantage would be that in theory, the police or enforcement department inthe IP office has to investigate an offence when a complaint is filed. This will also allow the copyright owner to have better visibility and control of the criminal complaint process and be in a position to query or withdraw the complaint, if needed.
Under the criminal provisions of the new law, the mens rea element has been removed. The old law requires the mental element of "intentional act". This suggests that it may be easier to secure conviction under the new law.
The punishment has been adjusted as follows:
Old law (Article 72)
New Law (Article 113)
Copying and distribution commercially
Up to 7 years and/or maximum of IDR 5 billion
Up to 4 years and/or maximum of IDR 1 billion
Copying and distribution in the form of piracy
Up to 10 years and/or maximum of IDR 4 billion
The explanatory notes do not provide further clarification on what constitutes "form of piracy" which would warrant the higher sanctions.
Collecting societies are now regulated under Chapter XII. The provisions require collecting societies to register with the Ministry of Law. They also need to meet various requirements such as minimum number of rights owners that they need to represent and the maximum sum that can be appropriated for operational cost from royalties.
The implementation of these provisions requires the passing of further procedural regulations to be issued by the Ministry of Law.