Digital Copyrights and The Problem in Indonesia
A. Introduction Intellectual Property Rights is a right that derives from the human’s intellectual which has an economic value. Intellectual Property Rights is divide, such as Copyright. From World Intelectual Property Organization (WIPO) Publication No. 450 (E) The Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.”1 In Indonesia, Intellectual Property Rights is regulated under the Undang-Undang Nomor 28 Tahun 2014 tentang Hak Cipta (UU Hak Cipta) on article 1 point 1: “Hak Cipta adalah hak eksklusif pencipta yang timbul secara otomatis berdasarkan prinsip deklaratif setelah suatu ciptaan diwujudkan dalam bentuk nyata tanpa mengurangi pembatasan sesuai dengan ketentuan peraturan perundang-undangan.” Based on the definition mentioned above, Copyright Protection in Indonesia is automatically applied to a creation as it is created. Definition of Creation itself is based on article 1 point 3 UU Hak Cipta, which stated: “Ciptaan adalah setiap hasil karya cipta di bidang ilmu pengetahuan, seni, dan sastra yang dihasilkan atas inspirasi, kemampuan, pikiran, imajinasi, kecekatan, keterampilan, atau keahlian yang diekspresikan dalam bentuk nyata.” The Subject of Copyright is the Author. Based on article 1 point 2 UU Hak Cipta, the definition of authors is: 1 WIPO Publication No. 450 (E)
â€œPencipta adalah seorang atau beberapa orang yang secara sendiri-sendiri atau bersama-sama menghasilkan suatu ciptaan yang bersifat khas dan pribadi.â€?
B. Issues Nowadays, the era has come to the digital world. Many intellectual property can be established digitally. It makes many people can access it easly. Such accessibility pave a bigger way for hijacking. In this circumstance intellectual property rights take place to protect it from being hijacked. In Indonesia, Cases of copyright infringement of photographs in the digital realm also never happened. In june 2017 instagram influencer named Danar Tri Atmojo expressed resentment over the actions of hipwee, a digital media segment of young people, who has stirred his shots withot permission. Not only uploaded again, Hipwee was also made modifications by giving watermarks and text. Although Hipwee wrote the source, Danar remained annoyed that Hipwee did not ask for permission at all. Danar also send an email to Hipwee to express his objection while providing invoices for the use and modification of the photo. In response, Hipwee removes only content that has already been used. Danar gets even more annoyed that Hipwee thinks the problem is over after they delete the photo. He also expressed his frustration through Instagram account for many people, especially the media and fellow photographers like himself, more aware of the issue of copyright this photo.2
2 https://id.techinasia.com/talk/hak-cipta-foto-bagi-pemasar-digital accesed on 3 April 2018 01.52 AM
The Berne Convention deals with the protection of works and the rights of their authors. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them. (1) The three basic principles are the following: (a) Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of "national treatment") (b) Protection must not be conditional upon compliance with any formality (principle of "automatic" protection) (c) Protection is independent of the existence of protection in the country of origin of the work (principle of "independence" of protection). If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases. (2) The minimum standards of protection relate to the works and rights to be protected, and to the duration of protection:
(a) As to works, protection must include "every production in the literary, scientific and artistic domain, whatever the mode or form of its expression" (Article 2 (1) of the Convention). (b) Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that must be recognized as exclusive rights of authorization:
the right to translate,
the right to make adaptations and arrangements of the work,
the right to perform in public dramatic, dramatico-musical and musical works,
the right to recite literary works in public,
the right to communicate to the public the performance of such works,
the right to broadcast (with the possibility that a Contracting State may provide for a mere right to equitable remuneration instead of a right of authorization),
the right to make reproductions in any manner or form (with the possibility that a Contracting State may permit, in certain special cases, reproduction without authorization, provided that the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author; and the possibility that a Contracting State may provide, in the case of sound recordings of musical works, for a right to equitable remuneration),
the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work
The Convention also provides for "moral rights", that is, the right to claim authorship of the work and the right to object to any mutilation, deformation or other modification of, or other derogatory action in relation to, the work that would be prejudicial to the author's honor or reputation. (c) As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author's death. There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous
works, the term of protection expires 50 years after the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as to the author's identity or if the author discloses his or her identity during that period; in the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public ("release") or â€“ failing such an event â€“ from the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of the work (3) The Berne Convention allows certain limitations and exceptions on economic rights, that is, cases in which protected works may be used without the authorization of the owner of the copyright, and without payment of compensation. These limitations are commonly referred to as "free uses" of protected works, and are set forth in Articles 9 (2) (reproduction in certain special cases), 10 (quotations and use of works by way of illustration for teaching purposes), 10 bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current events) and 11 bis (3) (ephemeral recordings for broadcasting purposes). (4) The Appendix to the Paris Act of the Convention also permits developing countries to implement non-voluntary licenses for translation and reproduction of works in certain cases, in connection with educational activities. In these cases, the described use is allowed without the authorization of the right holder, subject to the payment of remuneration to be fixed by the law. The Berne Union has an Assembly and an Executive Committee. Every country that is a member of the Union and has adhered to at least the administrative and final provisions of the Stockholm Act is a member of the Assembly. The members of the Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio.
The establishment of the biennial program and budget of the WIPO Secretariat – as far as the Berne Union is concerned – is the task of its Assembly. The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979. The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO 3
Based on UU Hak Cipta, there is two types of rights, which are morality rights and economic rights. Based on article 5 section 1 UU Hak Cipta, the definition of Morality Rights on Property Rights is : “Hak moral sebagaimana dimaksud dalam Pasal 4 merupakan hak yang melekat secara abadi pada diri Pencipta untuk: a. tetap mencantumkan atau tidak mencantumkan namanya pada salinan sehubungan dengan pemakaian Ciptaannya untuk umum; b. menggunakan nama aliasnya atau samarannya; c. mengubah Ciptaannya sesuai dengan kepatutan dalam masyarakat; d. mengubah judul dan anak judul Ciptaan; dan e. mempertahankan haknya dalam hal terjadi distorsi Ciptaan, mutilasi Ciptaan, modifikasi Ciptaan, atau hal yang bersifat merugikan kehormatan diri atau reputasinya”
Based on article 8 the definition of Economic Rights on Property Rights is :
3 Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886)
“Hak ekonomi merupakan hak eksklusif Pencipta atau Pemegang Hak Cipta untuk mendapatkan manfaat ekonomi atas Ciptaan” The Economic rights can only be given to the Author and the Copyright Holder, limited for : a. b. c. d. e. f. g. h. i.
Publication of Creation; Multiplication of Creation in all its forms; Translation of Creation; Adaptation, organizing, or transforming Works; Distribution of Works or copies thereof; Performances of Creation; Announcement of Creation; Communication Creation; and Rental of Creation.
Based on article 9 Section (2) UU Hak Cipta, anyone can have an economic rights with the permission from the Authors or Copyrights Holder.
D. Analysis The characteristic of Copyrights is Automatic Protection, which is when the author publish his creation, the right is automatically applied. In Danar’s Case based on article 95 section (1) the dispute can be settled by alternative dispute resolution, arbitraton, or by the court. The Court that has the Juridiction is Commercial Court. Danar can filed the lawsuit against the Hipwee. Because in this case, Hipwee has infringed the article 10 section 3 UU Hak Cipta. E. Conclusion The rapid development of the era brings us to the digital world, which many of the creations made digitally. Such digital creation is more vulnerable to hijacking. In international law, intellectual property is regulated and protected under the, inter alia, Bern Convention. Indonesia, in particular, regulate such intellectual property under UU Hak Cipta. Unfortunately, authors in Indonesia is having lack of knowledge that the
settlement of the dispute can be implemented in alternative way, arbitration, or court. Knowing such procedure is crucial for legal certainty in Indonesia.