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Intellectual Property Rights
Intellectual property rights
Indonesia is a signatory to the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS), an agreement scheduled to the General Agreement on Tariffs and Trade (GATT) Agreement of the World Trade Organization. As such, Indonesia has enacted a raft of new legislation from 1997 onwards in order to enhance Indonesia’s compliance with the TRIPS requirements.
Indonesia is a signatory to the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS), an agreement scheduled to the General Agreement on Tariffs and Trade (GATT) Agreement of the World Trade Organization. As such, Indonesia has enacted a raft of new legislation from 1997 onwards in order to enhance Indonesia’s compliance with the TRIPS requirements.
The problem with enforcement of intellectual property rights
in Indonesia comes from a number of sources – industrial, technical, social,
cultural and legal. The Indonesian government is hoping to tackle the issue of
enforcement through new laws. On the positive side, there is a general
coherence amongst the laws in terms of the definitions, alternative dispute
settlement procedures, civil proceedings and criminal sanctions available for
intellectual property rights enforcement. Although enforcement of intellectual
property rights is, at present, difficult, it is hoped that over time Indonesia
will create a comprehensive and structurally sound intellectual property rights
protection regime. Indonesia also has substantial interest in providing
protection for indigenous intellectual property and, to a lesser extent,
geographical indicators.
The Directorate General of Intellectual Property Rights
(Direktorat Jenderal Hak Atas Kekayaan Intelektual) under the MOLHR administers
the enforcement of intellectual property rights in Indonesia. Registration is
the basis upon which intellectual property rights in Indonesia are claimed and
it is at this point that the greatest reform has been made. In theory, a new
streamlined procedure should result in significant reductions in registration
times – however, this has not yet happened in practice.
Enforcement of intellectual property rights is now provided
through the Commercial Court. The Commercial Court was initially established
for bankruptcy proceedings and the perception of the court is of speedy and
effective, if not more expensive, legal proceedings. However, in practice,
intellectual property rights enforcement is usually through more practical
remedies. Infringements can sometimes be remedied by a “cease and desist”
letter and/or with the follow-up of a notice published in newspapers of the
intellectual property owner’s intention to take further enforcement action.
Copyright
The Indonesian Copyright Law No. 19 of 2002 (Copyright Law)
came into effect in July 2003. The reasons for replacing the old regime with
the new Copyright Law were that the old
laws had not accommodated TRIPS in terms of encouraging the development of
intellectual works originating from Indonesian art and other cultural sources and there
was a need to distinguish the position of copyright from that of related rights
in order to give clearer protection to relevant intellectual works.
The Copyright Law distinguishes between copyright and
related rights in terms of the period of protection and penalties. “Related
rights” which are covered by the new Copyright Law consist of exclusive rights
possessed by a licensed agent, a sound recording producer or a broadcast
institution.
While the period of protection of copyright is granted for
50 years, the protection period for related rights of a licensed agent and a
sound recording producer is 50 years, and 25 years for a broadcasting
institution. Different civil and criminal penalties apply to infringement.
Matters covered by the new Copyright Law include:
- protection of databases
- usage of wire or wireless devices, including the Internet, to operate optical disc products through audio, audio-visual and other telecommunication devices
- court injunctions
- a time limit for settling copyright disputes in the Commercial Court and on appeal to the Supreme Court
- electronic information management and technological control device rights
- protection for hi-tech products
- penalties for violation of related rights
- a penalty for the reproduction of computer programs for illegal and unlawful commercial purposes.
Indonesia ratified the World Intellectual Property Organization
Phonograms and Performance Treaty which came into effect in 2002. This treaty
prohibits the unauthorized exploitation of recorded or live performances on the
World Wide Web.
Domain names
In April 2008 Indonesia introduced its first electronic
information and transactions law dealing with electronic commerce, domain names
and related intellectual property rights (see further below).
Currently, domain name registration is available at the
Indonesian Internet Domain Name Management Organization (PANDI), which has the
authority to assign, check and reject domain name registration in Indonesia.
Indonesia has several domain name registrations including:
ac.id, sch.id, co.id, net.id, go.id, mil.id, or.id and web.id. To obtain a
“co.id” domain name requires the applicant to hold an Indonesian taxpayer
registration number and trading license number. However, the documentation for
obtaining a “web.id” domain name does not rely upon the applicant having a
local presence in Indonesia. A foreign company could register the “web.id”
domain name so long as they have a “local administrative contact address”.
Patents
The Patent Law No. 14 of 2001 provides, amongst other
things, that petty patents are limited to tangible items only and a patent on a
process must be in the nature of a full patent. Patents are valid for 20 years
and are not renewable. Simple patents are valid for ten years and are also not renewable.
Holders of a patent have the right to grant licenses to
other parties based on a license agreement. A license agreement must be
registered and announced in the Official Gazette of Patents.
Trademarks
The Trademark Law No. 15 of 2001 addressed a primary concern
of foreign investors as it provided for further legislative measures to be
taken to stop use of a brand name where the name is registered as a trademark
in another country. The Trademark Law prevents the registration in Indonesia of
trademarks which are registered and “well-known” overseas where the applicant
party is acting in bad faith.
Trademark registrations are valid for ten-year periods and
are renewable. Assignment of a trademark must be in writing, confirming that
the trademark to be assigned will be used for the trade of goods and services.
Goodwill, reputation or other related aspects of the trademark may also be
assigned.
The Trademark Office accepts applications for trademarks
with “priority rights” where the trademark has been registered in another
country under the 1883 Paris Convention for the Protection of Industrial
Property and the 1994 GATT. Priority application must be submitted within six
months of the filing date of the application for registration of the trademark
in the other country.
The Trademark Law requires trademark licenses to be
registered. However, at the time of writing, no system had been established
within the Trademark Office for such registration.
The registered owner of a trademark may submit a claim for
damages against an infringer and apply for interlocutory injunctions. The
Trademark Law also provides for alternative dispute resolution, including
arbitration.
Trade secrets
Indonesia’s first law on trade secrets came into effect in
December 2000. Trade secrets refer to information not identifiable by the
public in technology and/or business fields which has economic value (that is,
commercial or profit-making value). The information must be “secret”, that is,
only identifiable by certain parties, and must have been disclosed in
circumstances where confidentiality was intended to be protected.
Trade secret holders have sole right to use, to license and
to prohibit other parties from using or revealing the trade secret. Ownership
of trade secrets may change by inheritance, grant, written agreement or
assignment. Under the Trade Secrets Law, changes in ownership of trade secrets licenses
must be registered and announced in the official Gazette of Trade Secrets.
However, at the time of writing, the registration and announcement procedures
had not been established.
Industrial designs
The Indonesian Law on Industrial Designs No. 31 of 2000
refers to the creations of forms, configurations or compositions of lines or colors,
or combinations thereof in the form of two or three dimensions. Industrial
designs may only be registered where there has been no previous disclosure of
the design in exhibitions in Indonesia, the design has not been publicly
exhibited and is not already being used in Indonesia by designers in the
framework of trial assets for educational, research or development purposes.
Industrial design rights are granted for ten-year periods.
The industrial design right holder has exclusive rights to prohibit other
parties from making, selling, exporting, importing and distributing goods using
the industrial design right in question without their approval. Transfers and licenses
of industrial design rights must be registered and recorded in the Official
Gazette of Industrial Designs and registered at the office of the Directorate
General of Intellectual Property Rights.
Technical assistance
agreements
Technical assistance agreements are entered into in order to
transfer expertise and valuable information on the making and marketing of
various manufactured goods. The owner of certain patent or trademark rights
relating to particular licensed products may provide a license to a subsidiary
body or franchise partner. Information generally shared is the technically and
commercially useful information necessary for the manufacture and sale of a
particular licensed product. Information usually includes technical
information, know-how, plant layout, drawings, specifications and treatment of
materials relating to the manufacture and sale of a particular licensed product.
Technical assistance may also take the form of coordination
and liaison services between the parties, visits of technical officers and
other communications.
E-commerce
In April 2008 Law No. 11/2008 Regarding Electronic
Information and Transactions (E-Commerce Law) was enacted to regulate matters
relating to information and electronic transactions in all electronic forms.
The E-Commerce Law is the first piece of legislation that regulates electronic
transactions in Indonesia.
The E-Commerce Law sets out the legal basis for electronic
transactions, including defining terms such as information technology,
computers, electronic information, electronic contracts, electronic signatures,
and electronic certificates. The E-Commerce Law prescribes a method for determining
when electronic information is deemed to have been transmitted and received. It
also provides for the creation of a certification body which can audit and
issue certificates regarding the reliability of parties engaged in, and
products the subject of, electronic trading.
The E-Commerce Law applies to all electronic transactions
and all persons or institutions involved in electronic transactions (that is,
local and foreign subjects), and ensures those transactions are legally
protected. For the first time, electronic evidence will be able to be used in
court. The E-Commerce Law also covers registration and use/misuse of domain
names, the protection of certain electronic information as intellectual
property and the use by electronic media of information that affects an
individual’s right to privacy. Not surprisingly, it also prohibits
dissemination of material relating to pornography, gambling or violence by
means of computer or electronic systems.