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Friday, October 3, 2014

Enforcement provisions in Indonesia's new copyright law

Below are the additions to the Indonesian copyright enforcement regime in the newly passed Copyright law.  
 
Landlord liability

There is a welcome provision on the creation of landlord liability.

Online infringement

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 materials 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 offense

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 in the IP office has to investigate an offense when a complaint is filed. This will also allow the copyright owner to have better visibility and involvement in the criminal complaint process and be in a position to query or withdraw the complaint, if needed.

Criminal sanctions

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.

Under the new law, the punishment has been adjusted as follows:



Offending act

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" that warrants the higher sanctions.
 
The practical enforcement environment remains Indonesia's biggest IP challenge, with criminal action remaining extremely challenging. The addition of a new ministry to handle online enforcement hopefully adds a new dimension.

 

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