Problems of Enforcing Intellectual Property Laws in Indonesia
Faculty of Law, Brawijaya University, Indonesia
Although intellectual property law had been a relatively quiet and neglected area within the Indonesian legal order in the decades following Indonesian independence in 1945, that situation changed abruptly towards early of 1990s.There was at that time a sudden interest in the protection of intellectual property rights in Indonesia and a corresponding flurry of political and legislative activity.i Since that time, intellectual property law has become the fastest growing field of law in Indonesia and the Indonesian government has launched massive legislative reforms in the area.ii
The government introduced the Copyright Act in 1987 to amend the Copyright Act 1982. A Patent Act followed in 1991 and in 1993 a new Trademark Act replaced the old Trademark Act 1961. These developments were accompanied by a large number of government regulations, ministerial decrees, and other administrative decrees to support the implementation of the new intellectual property laws. Around this time, the Indonesian government also made bilateral agreements for the protection of copyright with several Western countries, including the US, the EU countries, Australia, and the UK.iii
These developments culminated in the ratification of the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement, as part of the Agreement Establishing the World Trade Organisation by the Indonesian government in 1994.iv As a result of the TRIPs Agreement, the Indonesian government once again reformed the country’s intellectual property laws by amending the existing statutes, the Copyright Act, Trademark Act, and Patent Act with the Copyright Act No. 19/2002, Trademark Act No. 15/2001, and Patent Act No. 14/2001. Moreover, to comply with the TRIPs Agreement, the Indonesian government also enacted new intellectual property laws, namely, the Industrial Design Act No. 31/2000, Layout-Designs of Integrated Circuits Act No. 32/2000, Trade Secret Act No. 30/2000, and Protection of Plant Varieties Act No. 29/2000. The Indonesian government also ratified several international conventions on intellectual property law, among others, the Berne Convention, WIPO Copyright Treaty, Patent Cooperation Treaty, and Trademark Law Treaty. All were done in 1997 following the ratification of the TRIPS Agreement.
Despite these rigorous and extensive legislative reforms in the field of intellectual property law, however, it has become clear that intellectual property laws remain very difficult to enforce in Indonesia and protection of intellectual property rights is still weak. Ignorance of these rights and their legal status is still very widespread. Indonesia remained on the United States “Priority Watch List” until November 2006 when the US Trade Representative upgraded Indonesia to “Watch List”.v Piracy of literary and artistic works is still rampant and trademark counterfeiting is still widespread. Rental shops that rent pirated films and computer rentals that use infringed software, can be found everywhere in Indonesia.
There are several factors that contribute to the difficulties of enforcing intellectual property laws in Indonesia, among others:
1. The origins of the existing intellectual property regime in Indonesia does not lie and has never been developed in Indonesia, but rather in Western countries that have different economic interests and cultural norms from those of Indonesia.
2. The intellectual property laws are incompatible with Adat (an extensive system of Indonesian customary norms) that does not recognise ownership in intellectual works or inventions. Adat is still strongly held by most Indonesians.
3. The weak legal enforcement in the field of intellectual property law.
4. The laws are not appropriate to the stage of economic and technological development in Indonesia.
i Antons, Christoph, “Intellectual Property Law Reform in Indonesia” in Lindsey, Timothy (ed), Indonesian Law and Society (Sydney: The Federation Press, 1999) at 304
Antons, Christoph, Intellectual Property Law Reform in Indonesia, Paper presented at “Indonesian Law: The First 50 Years” a Conference held at the Asian Law Centre, the University of Melbourne, 28 September 1995, at 1
ii For comparison, the Indonesian government almost never puts any effort to reform other important laws, such as: the Civil Code (Burgerlijk Wetboek voor Indonesie 1847), the Criminal Code (Wetboek van Strafrecht 1915), and the Civil Procedure Code (Het Herziene Indonesisch Reglement 1848, 1941) that were already enforced since the Dutch colonial rule.
iii See the Presidential Decree No. 17/1988 to ratify the agreement between Indonesia and the EC on copyright protection in sound recording; Presidential Decree No. 25/1989 to ratify the agreement between the US and Indonesia on copyright protection in books, sound recording, films, computer software and other creative works; Presidential Decree No. 38/1993 to ratify the agreement between Indonesia and Australia on copyright protection; 1993 agreement on copyright protection between Indonesia and the United Kingdom.
iv See the Act No. 7/1994
v See the US Embassy Press Release November 2006 as cited in the official website of the Indonesian Embassy in Singapore, http://www.kbrisingapura.com/news_1107_2006_1.php (8 February 2008 )