Indonesia’s criminal code is being amended at present. There are a number of controversial provisions in the draft being debated by Parliament. The IP provisions however ought not have been controversial. At present all IPR crimes and their criminal penalties are set out in the separate individual IPR laws (Trademark, Copyright etc). However the draft new criminal code proposes to add a new set of offences.
S574 1a sets our a new offence of counterfeiting intellectual property, which applies to trademarks, copyrights, patents or designs. Penalties are increased and infringing articles can be confiscated and destroyed. Secondly commercial activities are specifically mentioned, including offer for sale as separate crimes. In addition there are expanded specific trademark offences such as “Attaching counterfeited trademarks to goods” and “Using authentic trademarks on goods or packaging, even though such trademarks have not been designated for use with such goods”.
This creates an odd situation. The IP laws introduced specific IP crimes which overrode the existing criminal provisions, as part of WTO TRIPS compliance in 2001. Now additional crimes are added in the new Criminal Code. This is likely to cause confusion as to which applies. In theory the Criminal Code adds its own offences, but mostly they replicate situations covered by the crimes set out in the IPR laws. Also there are few definitions and interpretations in the Criminal Code for IPR matters, such as there are in the specific IPR laws. One can assume those relying on the Criminal Code may look to the IPR laws, but then why create overlapping duplicated offences?
Possibly the Criminal Code offences will have slightly wider application, when the IPR law criminal provisions are narrower. The major difference however is that the criminal provisions in the IPR laws must be based on a complaint from the rights holder. This was controversial at the time and has probably led to a reduction in IPR enforcement as the authorities could no longer act alone. These new Criminal Code offences allow authorities to undertake their own investigations and prosecutions, without the IPR owner’s involvement.