Wednesday, August 14, 2019

Data privacy update – Indonesia

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Indonesia is still getting to grips with how to manage data. A full data protection/privacy regime does not yet exist. Personal data processing requires proper prior consent of the data subject under 2016 personal data protection regulations. It is widely thought not to be well observed. Spam calls, messages and social media data use are common by businesses.

Parliament is deliberating a new data privacy law. The Bill was drafted 4 years ago but is not yet passed It was initially listed to pass in 2019. however in April a new draft was prepared and send to Parliament.  The new bill follows a structure to define data, give rights to data owners/subjects, and establish data controllers, provide data processing steps, deal with data transfers, data erasure and destruction.  The bill may not pass until next year now.

A new Presidential Regulation 39/2019 provides a framework for managing the government’s own data.  There are rules on the type of data and how it must be collected (e.g. with metadata, that is standardized structures and formats) and held (e.g. in an open format so it can be searched, used and managed with ease). Various government institutions are created to help manage the data correctly. Four separate processes ensure data principles are adhered to – planning, collection, review and dissemination.  For citizens this provides some level of comfort that the government is managing data correctly.

Another new Regulation 40/2019 covers Residents’ Personal Data, covering the proper fixing of Resident's Identification Numbers and related personal identifying information (fingerprints, gender, biometrics etc), as well as rules for acquisition, storage and management by ministries. 

In a separate interesting development at the G20 in July, the issue of data protection arose. The G20 launched the Osaka Declaration on the Digital Economy, which is an affirmation the launch of a WTO program on developing consistent global ecommerce regulations for the digital economy. Indonesia however abstained at the G20, citing a lack of commitment to data privacy in the Osaka Declaration.  The Indonesian government expressed further concern that ecommerce in international trade had cross border and tax implications.  Indonesia is seeking to pursue online platforms that trade in Indonesia from outside the country, to tax their Indonesian revenues.  It is unclear whether it is really this or data concerns that were at the heart of the G20 abstention.

Wednesday, August 7, 2019

An ASEAN regional Trademarks office proposal revives

Image result for asean trademarkThe idea of creating regional ASEAN IP offices has been floated before; principally in the early 2000s. There was talk of a separate regional patent, designs and trademarks offices based perhaps in Singapore, Thailand and the Philippines. But insufficient support in other large countries, like Indonesia and Vietnam, combined with a solution for international filing offered by Madrid adoption scuppered those plans.

The 2016-25 ASEAN IP Action plan has put the idea back on the region’s agenda. The regional IP practitioner’s group, the ASEAN IP Association, has been looking again at regional trademark harmonisation. The EU’s Arise+ IP project is considering a feasibility study for ASEAN (given the success of the EUIPO). They will consider aspects such as legal infrastructure, operational set-up, fee structures, stakeholder interests, and the impact on national trademark systems.  ASEAN Member States held a meeting in Bangkok several months ago at which it was discussed. A concern to be addressed is potentially reduced cost and administration compared to as now, filing trademarks separately in each of 10 ASEAN Member States.

Tuesday, August 6, 2019

Indonesia’s new National Science and Technology Bill

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The creation of an innovative society based on innovation and knowledge creation is a key goal of most countries. To achieve this a country needs to set useful and effective policies that assist both the public and private sectors to create new (and usable) intellectual property.
A key issue for all countries is how to own and manage IP arising from publicly funded R&D. Typically countries try to ensure that the state owns IP created through its funding or R&D institutions. But there is more to it than that. If the state cannot effectively commercialize the IP, then such a policy will simply kill off the IP and waste the R&D time and cost. A more subtle second step policy is required allowing licensing by a research body, or spin off companies, or other ownership structures designed to use the IP effectively, usually with the proviso that the IP must benefit the national interests.
Indonesia’s National System of Science and Technology bill has passed through Parliament now and is awaiting signature. The new bill was introduced in order to replace the earlier science and technology framework, in Law No.18 of 2002 on the National System for Scientific and Technological Research, Development and Implementation (Siptek Law). 
The new bill provides incentives to produce national inventions and innovations, through scientific and technological research and development.  It targets individuals, groups, business entities (both state-owned and private enterprises), public and private institutions (including higher education bodies).
The new bill is concerned with all activities in the realm of education, research and development.  R&D results are to be published. Assessments of R&D outcomes are provided to see what national goals are met, to ensure testing occurs, as well as clearance and auditing of technologies produced.  The new bill promotes technology transfer arrangements by national and regional governments, including:  
a. Licensing;
b. Cooperation;
c. Provision of science and technology services; and/or
d. Transfers of technology subject to a public order proviso
e. Technology intermediation, such as use of incubators, technology-related events, partnerships and promotions.
f. Distribution and Commercialization of technologies, through incubators, partnerships and science and technology zones.

One specific commercialization tool is government procurement preferences for products with IP from state funded R&D.

All primary data and intellectual property which resulting from State funded R&D must be transferred to the central government. The law also mandates the storage of all data for 20 years.   

The Bill aims to improve coordination of research through the establishment of a National Research and Innovation Body (BRIN). It will offer a more varied set of funding sources to address the shortage of state and regional budget allocations for research.
Whether this all works depends on the ability of the bodies to use IP effectively. Many countries find that the state is not the best body to license or commercialize innovations. Partnerships with private institutions with shared incentives are usually critical.

Sunday, August 4, 2019

Philippines trade names and unfair competition

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Trade name infringement is a headache in much of Asia. Different ministries issue company names from trademarks, so company registrants tend to think they have a right to use arising from their company name issuance. A case in the Philippines found one way of resolving the issue.

The case was Asia Pacific Resources International Holdings Ltd v Paperone Inc. APRIH makes paper products, (such as the printer paper shown here) owned a trademark PAPER ONE registered by the IPO. It sued Paperone for Unfair Competition on the basis that it has used Paperone as its company name since the name was approved by the Department of Trade and Industry in 2001. Paperone claimed it did not use it as a trademark but as its corporate name. It identified itself as the manufacturer on products, but they were typically also branded with another trademark.

The case went to the Supreme Court, who reversing lower court rulings, held that there could be confusion over the product origins so this was a clear case of Unfair Competition.

Monday, July 29, 2019

Fake Aboriginal artwork from Indonesia

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In October 2018, a company called Birubi Art was fined by the Federal Court of Australia for selling fake Aboriginal artworks that were actually made in Indonesia.  Between 2015 and 2017, more than eighteen thousand (18,000) units of boomerangs, bullroarers, didgeridoos and message stones were sold to retail outlets around Australia by Birubi Art falsely labelled as “Aboriginal Art”, genuine” and “Australia”.   The Federal Court of Australia confirmed Birubi Art had “breached the Australian consumer law” and fined them AUD$2.3 million. This was an unusually large penalty due to the “serious cultural harm” to genuine Aboriginal artwork,“not just direct economic loss but a weakening of the value of the authentic products”. The belief is these were imported, perhaps smuggled into Australia from Indonesia.  

Fake art in Indonesia is unfortunately well known. The Indonesian Fine Art Lovers Association (PPSI) concedes that replica art is acceptable as long it does not display a forged signature of the original artist or have the blessing of the artist’s family.  To address this issue, PPSI published a booked titled Melacak Lukisan Palsu (Tracing Fake Paintings) to address art forgery in Indonesia.  Renowned Indonesian artists such as S.Sudjojono, Hendra Gunawan and Lee Man Fong are among the most widely forged in Indonesia.

Tuesday, July 16, 2019

Biopiracy and research in Indonesia

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Indonesia has passed a new law to protect the country’s natural resources from biopiracy. Biopiracy means exploiting natural plant and animal species or genetic resources illegally. It is often associated with seeking patents to restrict their natural or general use. 

Indonesia's Ministry of Environment estimates that the country's medicinal plants alone are worth US$14.6 billion if they were marketed as finished products. The new law seeks to cover the following:

  • Subject matter includes biodiversity materials, local specimens, social or cultural assets
  • Research permits are required 
  • Material transfer agreements are required to take samples overseas for research 
  • Prohibitions on removal of or damage to biodiversity samples
  • Rights to take criminal action by the government
  • Fine, imprisonment and blacklisting of foreign researchers who steal biodiversity samples  

Past instances of removal and research overseas, by foreign researchers and scientists, without MTAs and working visas are the chief complaint the law seeks to stop. However some scientists worry it will drive foreign scientific cooperation out of Indonesia elsewhere. The current research permit rules are already thought to be overly complex. 

The biopiracy provisions are found in Indonesia’s National System of Science and Technology bill which passed through Parliament and is awaiting Presidential signature.