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Monday, February 4, 2013

Indonesia's problematic copyright registration system

Copyright is the expression of a creative idea, which comes into being (creating legal rights) once the work is fixed in some form. No registration is required to create the right, indeed such a system would breach the Berne Convention. Some countries like the US and China have voluntary registrations systems. The US one is cheap and simple so helpful to prove rights, especially subsistence, creation, authorship and ownership data. But few rights come from the registration itself. The same in China where local language makes having an official document in Chinese easier. In common law countries self-certification through an Affidavit or statutory declaration works well because of court contempt sanctions for false declarations. In all these places a registration can be cancelled or in the case of common law countries there are legal sanctions for false declarations.

Indonesia has long had a copyright registration system, but it's is one of the most dysfunctional elements of the IPR system. Questions were raised in the recent round of amendments to the Copyright Law as to the purpose of the Copyright register. Because it's use is inconsistent, uncommon, it is often more abused than used properly. Once secured a copyright registration is hard to remove. It takes on undue weight because it has a government stamp on, so creates an illusion of strong rights.

Trademark pirates especially use it to register logos and graphic elements of packs in order to bolster their dubious positions. Various Polo Ralph Lauren pirates have registered repeated versions of the Polo player as part of their broad IP theft of Ralph Lauren's brand in Indonesia. Complex and therefore expensive litigation is required to revoke copyright registrations.

In an article in the Asia Pacific supplement to September's Managing Intellectual Property Nabila Ambadar adds another example. A furniture company registered a catalogue of its traditional Indonesian style furniture carvings. They then tried to assert it against other furniture makers. 2 issues are pointed out. Firstly these were not original artistic works at all, but once registered represented a threat to local industry. Secondly the question whether 3D reproduction of a 2D graphic work amounts to infringement arose.

Further, words are often registered as part of copyrights. Because copyright registrations are hardly examined, even the most rudimentary devices and words get registered. Indonesia technically has a high artistic merit test so when the Copyright Office accepts rubbish for registration, it devalues the whole system and encourages infringers. Then as Nabila Ambadar also points out, you end up with silly disputes.

A recent case filed in court shows this. PT Holcim, a cement company is being sued by a former director, who alleges that they used an accounting method without his permission. He asserted a copyright registration for a formula used to calculate the value of a limestone mining project. He asked for payment of royalties and punitive damages up to USD 60 billion! Holcim defended and now has to cancel this dubious copyright for being insufficiently creative.

The net result of the copyright register is that it creates additional legal disputes and costs for businesses in Indonesia. It is a barrier to trade. A good solution is needed to fix the system such as examining copyrights to prevent invalid works being registered. And someone has to sort out the huge number of old problem registrations. Otherwise it should really be abandoned altogether.

 

 

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