2016, Sejarah Dan Politik Hukum Hak Cipta

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the value and dignity of the nation. The law seemed like to need a great
sanction to be obeyed.124

We can see how the choice of alteration made in the Act
Number 7 of 1987, at the beginning the Act put the offense of
copyright infringement as offense on complaint, but in the Act number
7 of 1987 it was altered to be a regular offense. That means by altering
the provision to be a regular offense the law enforcer would become
more capable to do the investigation without waiting on the complaint
from the Author or the Copyright Holder. The alteration on the status of
the offense was not separated with the demand from the internationals
which has the background of capitalist countries, because of that, such
alteration had the support from the Western Countries especially United
States of America. Their reason was to make the society of Indonesia
understand and respect the rights of another people, but actually that
was not the intention of the Westerns, their intention was to make
Indonesian people become more civilized with the offense alteration.
Probably with a greater sanction, Indonesian could obey more.

This liberal ideology was getting real when the time period of
copyright which was as long as the author lives plus 25 years after the
death of the Author, in the Act number 7 of 1987 the time period was
prolonged until 50 years after the death of the Author. This time period
was finally put back just how the Auteurswet 1912 Stb Number 600 put
it. The long time period caused the copyright was more far away from
applying its social function.

The alteration on time period of the of the copyright
ownership was actually based on the demand from internationals,
because most of the capitalist country in the national legislation has
limited the copyright time period in the life span of the creator plus 50
years after the Author’s death. The choice of national copyright
legislator to not have the courage to be different from those capitalist
countries was because of the political pressure factor which haunted
behind the alteration process of the national copyright law, even though
the thing was never could be explained normatively.

124 Just like childhood story, elder used to describe the fear to the police. The
crying children would be quiet right after the parents told them that the police would be
there soon. Threats like these were the threats that only be able to be given to the children
who had no knowledge or awareness regarding the meaning of life, precious meaning
regarding our appreciation to people’s effort. There was something missing in this nation,
moral awareness, cultural awareness, religious awareness but that did not mean the law
must placed them in the childhood position.

167

Some official explanation by the government in the
information in front of the House of Representative Assembly
regarding the design of the act of the alteration of the Act number 6 of
1982, was not also explain the political pressure which became one of
the reason to alter the copyright law, except the governments
explanation regarding the alteration of this act based on the design of
alteration of the Act number 6 of 1982 regarding Copyright, which was
mentioned by the President to the House of Representatives though the
official letter Number R-03/PU/III/1987 on 25 March 1987.

Next, it was explained that the 5 years experience of the
enforcement of the Act Number 6 of 1982 confined many experience,
and it was admitted by the government as something that was worth to
be made as a lesson. It was also admitted that the national Copyright
Law was sourced from foreign law.125

Even though the regulation regarding Copyright has known by
Indonesian society for 75 years, (70 years of the enforcement of
Auteurswet, 5 years of the enforcement of Act number 6 of 1982) the
government still stated that this field of law is still relatively new. It
was not clear the new criteria used by the Government.126 But, there
was a hope that was intended to be achieved by the Government by
altering this Act that was to create a better vibe on the copyright
protection than the previous time.

125 It had already 5 years, since the Act Number 6 of 1982 re garding
Copyright was verified on 12 April 1982, the Indonesian had the set of Laws that regulate
the legal protection on their work in the field of Science, art, and literary. All that time,
there was enough experience to enrich the knowledge of life in those fields. Various
things appeared and grew the awareness of the nation regarding the weakness which had
to be fixed for the sake of the future. So far, the government considered the experience as
a very useful lesson. Even though it had to be admitted that the concept of copyright as
individual right with exclusive character and has no form , and the regulation inside the
legal system , was indeed studies from the foreign law. In this connection, Everyone
should have the same opinion with the government regarding the respect to individual or
the right attached which was actually the characteristic of Indonesian. But then the right
was spread clearly in positive legal system especially in the field of economy, it was
indeed a relatively new concept for the society of Indonesia.

126 It is still fresh in our memory, how big our belief in arranging the design
of Copyright law was, and agreed by the House of Representatives regarding the
necessity to grow the attitude to respect and appreciate a work in the field of science, art
and literary. These are all indeed without no consideration, and also without any basis.
The respect and the appreciation on a work in science, art and literary was not only
regarding the admission of one’s individual right on his work. It was also not only the
admission on the owner’s right or the copyright holder to enjoy the economic benefit in
certain meaning on his right.

168

The stimulation of the development of the copyrighted works
which were born by the people of Indonesia was also the main desire of
the Government in amending the Act number 6 of 1982. Especially in
certain fields, such as on the computer program that was new that time
as a knowledge or science. Even though not all the issues of the
computer program protection was for Indonesia, but as a nation that
depend strongly on industrial countries like America, like it or not,
Indonesia had to accept the offer from America to put in the aspect of
computer program as a part of the works that has to be protected.127

The creation of this kind of vibe was what has desired to be
realized, developed, and utilized. In order to apply the national
development, that kind of vibe was really necessary. Because, only by
that the growth and development of the passion to create in the field of
science, art and literary can be counted on. It has already so often the
opinion regarding the importance on the science and technology for the
life of a nation and the future to be heard. Also in the field of social-
culture, it has been the goal to realize the strong Indonesian
characteristic in the middle of the international countries’ life which
also grow and develop. In this connection, it was hoped that the growth
of the development on art and literary in Indonesia in the field of song
and music, movie and literary writings, the art of dance, the art of
drama, the art of painting, the art of carving and the other, to go better.
With the background of that thinking, the Act number 6 of 1982 was
arranged together.

Now, the question appeared is how about the experience all
along and what problems were in the background of the proposed
design of the Act regarding the Alteration of the Act number 6 of 1982.
As we know, both the report or the news from press, since these few
years, it has been heard more and more the Copyright violation. The
background of all those was that basically it was actually for the
purpose to achieve financial benefit in no time by disobeying the
interest of the Copyright Holder. The effect on the violation was so bad
on the living system of the nation in economy and law fields. in the
field of socio-culture, the effect appeared on the piracy was various.
For the offender of the pirate, this continuing event without any action,
would cause the attitude that piracy is a common thing and no longer is

127 Moreover, the steps to renew the law which was done by arranging the Act
Number 6 of 1982, consciously was directed especially to the effort to create a vibe that
can stimulate Indonesian people to create works in those fields. This was the vibe that
was worked on through the admission on the right and also the providing of the legal
protection system on the right.

169

an unlawful thing. For the Authors, the event grew the apathetic

attitude and reduced the passion of the Author. For the society as the

consumer, the growth of attitude which no longer see the necessity to

question if the work was the result of violation of law or not. The more

people disobey what is right or wrong, what is legit or not, even though

our country is a country with law basis. People questioned if the culture

and attitude of our nation is already that bad regarding the appreciation

of a work in the field of science, art and literary. The observation to

that kind of condition turned out to have a great effect to our

international relation.

By concerning the resulted damage and troubles, the

Government on 30 July 1986 had formed and delegated a working team

to:

First : to study and finish various problems connected with the

application of the legislation in the field of science, trade

mark and company mark.

Second : to accelerate the settlement of the arrangement of the design

of the legislation regarding the patent.

The working team led by the Young Minister/ Cabinet

Secretary consisted of some senior official member from the

Department of Justice, Department of Industry and Trade, Department

of information, Agency for the Assessment and Application of

Technology, and Indonesian Institutes of Science. Since the forming,

the priority to handle was given to the settlement of various problems

in the field of Copyright. Some meetings was held with the Chamber of

Trade and Indonesian Industry and related Associations which had the

interest with Copyright. The goal was to achieve more clearly the real

condition, and also the data, suggestion, or other necessary things.

Those associations were:

In the field of music :

1. Community of Creator Artist

Recording Musician of Indonesia

(PAPPRI)

2. Indonesian Recording Industry

Association (ASI-RI)

3. Indonesian National Recorder

Association (APNI)

In the field of Books :

1. The league of Indonesian

Publisher (IKAPI)

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2. Indonesian Author Association

(AKSARA)

In the field of movies :

1. Indonesian Film Company

Association (PPFI)

2. Recording Video Entrepreneur

Association (GABSIREVI)

In Computer Program Field :

1. National Information Company

Association (APNI)

2. Indonesian Computer User

League (IPKIN)

In the field of movie, consultation and suggestions were

accepted from the Associations of Chinese movies and Europe-

America, also Video Recording Industry Association (ASIREVI). Also

in the field of computer program, consultation regarding the effect of

the possibility of the legal protection providing to the computer

program on the price of the computer program (especially on Personal

Computer/PC), it had also being consulted with the Indonesian

Computer Industry Association (AIKI). Beside that, the Consultation

meeting had also been held by the team with the experts in this field.

All then were reviewed which finally resulted this design of

Legislation.

To complete the description regarding the condition

happened, the working team led by the young Ministry/ Cabinet

Secretary conveyed the conclusion achieved from the meetings with the

Associations related to the Copyright such as:

First : the violation on copyright especially piracy, by the

associations had been judged to reach a very dangerous

rate that endangered the creativity to create.

Second : the conviction in the Act number 6 of 1982 regarding

Copyright was too easy and so was the application. This

thing made the Act no longer able to prevent criminal

action in Copyright piracy.

Third : lack of coordination and agreement, attitude, and action

between the law enforcers in facing the problems in

copyright infringement.

Fourth : lack of understanding regarding the meaning and function

of Copyright and the provisions of Copyright in the

common society and even in the Authors society

especially.

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In detail, it was represented further regarding some
quantitative data that reported by the Associations to the government.
For example the case in the field of music, songs and movies, those
were the fields that suffered the most because the criminal act of piracy.
In the field of music and song, the piracy was on to the works of both
Indonesian Author and Foreign Author. The last one, especially are the
western songs. According to ASIRI, the damage suffered by cassette
recording company contained music of Indonesian songs because of the
piracy, in whole, reached Rp. 900 million per month or approximately
10 billion rupiahs per year. Especially regarding music and foreign
songs, the reaction then came from outside of the country. In the field
of the movie, PPFI, GABSI, REVI, or ASIREVI, all stated that the
piracy of national or imported movies, including video recording, kept
accelerating. If in 1983 the pirated movie was listed for 30 movies, then
in 1985 – 1986, 90% of all the movies even pirated in video before
officially published. Same event happened in the field of books. Even
though in amount or value it was not as big as the damage in the field
of music or songs, but both IKAPI and AKSARA really suggested that
the action to stop the violation on Copyright should soon be taken. Also
in the effort to grow computer industry more in the country, the
computer society represented by APNI (trade service), IPKIN (user) or
AIKI (maker), asked and suggested so that computer program could
clearly stated as protected copyrighted work.

The suggestion accepted by the Government not only in the
scope of things related to the infringement and piracy and also the
thought or suggestions to prevent it. The problem was indeed a main
problem. But beside that, in order in the effort to accelerate the
regulation and protection of the Copyright, many thoughts were
accepted regarding the possibility for the perfection many provisions in
the Act number 6 of 1982. It was not only on the conviction, but also to
reach the scope of the Act enactment, the time period of the protection,
and etcetera.

Further explanation was necessary regarding the problem in
proportional, especially in the connection with many view, question or
sometime doubt that the taken steps right now caused by international
pressures. In this thing, we are all agreed that as a society with nation,
independence, and sovereignty, decision regarding what is best for us
must be taken by the nation itself, not because of the pressure. So far,
the existence of some alteration on provisions that have effects both to
outside the nation or to foreign Copyright Holders was what caused the
impression. One of the future goal in the nation life as asserted in the

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Opening of the Constitution of 1945 was to take part in implementing
the world order which based on the independence, eternal peace, and
social justice. Also side by side with the goal, the legal system created
not only should be able to reflect aspiration, need, and the interest of
Indonesia, but also to always directed to be in line with the aspiration,
need, and interest of other nations. As legal principle, one did not want
to be disadvantaged because one did not put anyone in disadvantage.
Since one did not pun anyone in disadvantage, no one would like to be
put in disadvantage. All believe that with the similarity and balance in
life between nations, then, the world order based on independence,
eternal peace and social justice shall be realized. Indonesian nation
clearly wanted to be and to settle as a respected and responsible world
citizen in realizing that kind of world order. In the set of the similarity
and this balance too, other things with a necessity in explanation was
the existence of international convention in Copyright protection. In
connection between nations, this convention was the one which essence
was the rendezvous point of the connection of legal interest of various
nations and countries in the world. Because of that, on time Indonesia
should consider its part in the convention because of the national reason
as well as the relationship between nations, or in the acceleration of
cooperation in trade, economy, and politic, it was if in certain limits, in
line with the national need or interest. It is also the time to consider
some provisions in the convention that accepted in the national
legislation of Indonesia. And the problem regarding when Indonesia
will take part in the Convention, need to be studied and learned deeply
and carefully. In this connection, the Government conveyed the
alteration to the perfection about some provisions in the Act number 6
of 1982.

There are some important parts of the Act number 6 of 1982
that are in need of alteration:
First, the matter of the criminal;
Second, the scope of the Act;
Third, the time period of the copyright enforcement;
Fourth, the relationship between Country and Copyright Holder.

Beside those main things, another alteration which basically
was to perfected the redaction in order to clarify the provision, or to
adjust related to the main alterations.

If we paid attention on those four points of alteration, they
did not reflect the national legal goal development which is based on
Pancasila ideology. Those for points of alteration as explained before
were mainly because of the pragmatist consideration for the practice

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interest as the requirement to answer the demands from Western
Countries that based on capitalist ideology.

There were four important parts in the alteration of Act
number 6 of 1982 to the Act number 7 of 1982. This alteration from
Copyright Law number 6 of 1982 to the Act number 7 of 1987 if
presented in matrix form, shall be seen like this:

Matrix 12
Alteration from the Act number 6 of 1982 to the Act number 7 of

In Criminal Aspect

Altered Material of Altered Material Explanation
Substance Articles Act No. poured in

Regarding 6/1982 Articles in Act
Criminal number 7 of
action Penalty: 1987 From the

Imprisonment at Penalty: aspect of the
Imprisonment at
most 3 years and most 7 years and criminal, the
fine at most 100
fine at most 5 million (Article legislator put
44 paragraph 1)
million (Article Imprisonment at forward the
most 3 years and
44 paragraph 1) fine at most 25 reason that the
million (Article
Imprisonment at 44 paragraph 2) disloyalty of

most nine Imprisonment at the society to
most 2 years and
months and fine fine at most 15 the Act number
million (Article
at most 5 44 paragraph 3) 6 of 1982 was

million (Article cause more on

44 paragraph 2) the minimum

Imprisonment at penalty on the

most 6 months criminal

and fine at most offender.

Rp. 500.000

(Article 44

paragraph 3)

Source : Data processed by Saidin by comparing between the Act
number 6 of 1982 with the Act number 7 of 1987.

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The first field altered was regarding the criminal regulated in
the Article 44 Act number 6 of 1982. The direction of the alteration
was basically to harden the criminal penalty on the criminal action of
Copyright violation.

In the Copyright Law of 1982, the penalty as regulated in
Article 1 was given with imprisonment at most 3 years and fine at most
5 million (Article 44 paragraph 1) altered to imprisonment at most 7
years and fine at most 100 million. As well as in Article 44 paragraph 2
was only threatened with imprisonment at most 3 years of fine at most
25 million.128 The following alteration was the penalty regulated in
Article 44 paragraph 3, if the criminal was first threatened with
imprisonment at most 6 months and fine at most Rp. 500.000 (Article
44 paragraph 3) then in the alteration of the Act, the penalty was
accelerated to be at most 2 years and fine at most Rp. 15.000.000,-

The alteration from criminal to this worse, basically was
meant as one of the effort to accelerate the ability of the law to tackle
the Copyright infringement and to prevent the offender from
committing again. That was the message implicated or hidden which
then poured by the legislator in the Article regarding alteration of the
penalty regulated by the Copyright Law. The legal policy to harden the
penalty, showed the distance of philosophic understanding of the
legislators at the legal culture of Indonesian society. Because at last
even though the penalty had been harden, it could not be proven that it
was also lower the copyright piracy or copyright violation. The legal
culture of Indonesian society should be understood holistically not only
viewed with bare eyes that the piracy behavior or copyright violation
were only caused by the light penalty. Our observation since June 2012
until December 2012 proved that the copyright piracy especially in
cinematography produced in VCD or DVD proved that a worse penalty
did not stop the piracy activities or copyright violation.129 There was a
lost cultural understanding in the legislators to the legal behavior,

128 In Copyright Law of 1987, then set with imprisonment at most 7 years and
fine at most Rp. 1.000.000.000,- Article 44 paragraph 1.

129 Every evening in June and December 2012 we watch the supplier of the
pirated VCDs and DVDs in more than 20 stores operated in the edge of the road, in Dr.
Mansyur streets, Drussalam Street, Setia Budi Street, Kapten Muslim Street, Titi Papan
Street, Jamin Ginting Street, Krakatau Street, Sutomo Street, and almost in whole streets
in Medan city untu=il in shopping center like Petisah Market, Sei Sikambing Market,
Peringgan Market and the biggest market in marketing the pirated cinematography in
Belawan city. Our done observation was strengthening our belief that with the high level
of copyright violation as meant by the legislation, it did not change the behavior of the
society who had the involvement in those activities.

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economic behavior and socio-culture behavior in Indonesian society. If
there was a cheaper price, the society would not but a more expensive
stuff. It is not the time yet for Indonesian society to calculate the
quality aspects especially when the bought stuff was giving satisfactory
only on the first use. It is so seldom a consumer watch or reply the
same VCD/DVD repeatedly. So the quality aspect did not become an
important matter to the consumers. This fact would become a
determinant factor why at last the consumer must but the pirated
VCD/DVD even though it’s realized that the action was a criminal
action or civically was an unlawful action.

The choice of the legislator to accelerate the penalty was
strengthening the assumption that to prevent the piracy of copyright
violation, the most accurate step was to harden the penalty. Indonesian
society as the subject of criminal offender, must be shadowed with a
higher penalty to obey the law. A cultural phenomenon which was far
from the real society would become the country’s responsibility to
protect. The goal to protect the Indonesian society, to bring forward the
general welfare was disobeyed when the legislator positioned the
Indonesian society as a subject who needed to be scared off with the
penalty. This assumption was strengthened with the next target which
wanted to be achieved by the legislator in the Copyright violation,
because beside those alterations meant to punish the offenders or the
pirate, it was also meant to be a adjustment. Adjustment here, means
the imprisonment, alteration from 3 years to at most 5 years, based on
the consideration to fulfill the minimum standard of the imprisonment
provision as contained in Article 12 paragraph 4A in the book of
criminal law. As understood, based on that provision, the imprisonment
can only be done to the suspect and defendant who did the criminal
action and/or the trial or assistance in the criminal action in the matter
of the criminal action is was threatened with 5 years imprisonment or
more. Also the acceleration of maximum limit of the fine, based on
consideration that the Copyright piracy, regarding a bigger money
value. But by still giving freedom the judge to make decision with his
belief, the design of this Act provided the penalty of imprisonment or
fine both in cumulative or alternative. It proved that Indonesian society
by the legislator has not placed as a legal subject who also need to be
protected. By other words, the legislation disobeyed the philosophic
basis of humanity which is in justice and civilized, every criminal
provision should contain provision that humanized the human, not
positioned the Indonesian society at the lower rate. That every criminal

176

offender must provided with a severe punishment, without seeing the
factors around why people commit criminal action.

The characteristic of the offence also altered from the offence
on complaint to regular offence. The Alteration of the characteristic of
this offence was also meant to make easier the investigator to soon
implement legal action without receiving the complaints from the
Authors and Copyright Holders as stated in matrix below.

Matrix 13
Alteration of the Act number 6 of 1982 to the Act number 7 of 1987 Based on

Criminal Classification

Altered Material in Altered Material Explanation
Substance Articles Act No. poured in Articles
number 7 of 1987
6/1982

Criminal Characteristic of Characteristic of

Classification offence : offence:

Offence in Regular offence

complaint

(Article 45)

Source : Data processed by Saidin by comparing between the Act number 6

of 1982 with the Act number 7 of 1987.

If observed carefully the provision contained in the Auteurswet 1912
Number 600 , the act still paced the criminal act on copyright as
offence on complaint. With this alteration, the legal enforcer was asked
to be act more proactively in limiting the copyright. There were some
considerations which became the basis to make the alteration on the
offence on complaint to be a regular offence, such as:

1) Based on experience, the damage caused from the existence of
copyright infringement not only suffered by the Copyright
Holder. The Country also did not achieve the income tax on
the benefit achieved from the piracy. Beside that, without we
realizing it, the social, legal, and economic order has been
threatened.

2) The Copyright infringement, as an individual right, more
certainly be classified as a regular offence on stealing,
deprivation, and fraud or deception.
The basis of the consideration used by the legislator that time

was the offence on complaint, actually would be more certain if
connected to the violation on the honor or dignity such as humiliation,

177

rape, and becoming not right if implicated on Copyright infringement
which put more effect on economy, social, and legal order in general.

The third problem connected with the alteration in this
criminal was the addition of provision regarding the deprivation on the
result of Copyright by the Country to be destroyed. The addition of this
provision was meant to as good as possible to decrease the damage
morally or economically by the Copyright Holder. By that, the result of
the infringement did not just deprived. The work was basically not
allowed to be traded and must be destroyed. The fourth which also
connected, was the assertion on the existence of the Copyright Holder
Right to propose the civil suit to the offender, without decreasing the
right of the country to do the criminal charges.

Beside the criminal affair, another part that needed alteration
in the Act number 6 of 1982 was regarding the scope of the copyright.
If at the beginning, based on the provision of Act number 6 of 1982 the
protection to the foreigner’s copyright in Indonesia could only be
protected if for when listed for the first time in Indonesia and the
previous work announced in another country would not have any legal
protection in Indonesia. But, in Act number 7 of 1987, the foreigner’s
work would be protected in Indonesia if the foreigner’s country had a
bilateral agreement in copyright protection with Indonesia and the
country participated in multilateral protection in copyright protection
and Indonesia also participated in it, as stated in matrix below.

Matrix 14
Alteration Act number 6 of 1982 to the Act number 7 of 1987

Based on the scope of enforcement

Altered The material Act No. Altered Material poured in the

Substance 6/1982 Articles Act number 7 of 1987

The Scope The work of foreigners in It shall be protected of the
Indonesia can obly be foreigner’s country possessed

protected if protected for bilateral agreement in the field of

the first time in Indonesia copyright protection with

Indonesia.

The Work which Participated in multilateral

previously announced in agreement in the field of

another country would Copyright and Indonesia also

not be provided with participated in it.

legal protection in

Indonesia.

Source : Data processed by Saidin by comparing between the Act number 6

of 1982 with the Act number 7 of 1987.

178

The reason that the legislators that time in conducting the
alteration in providing legal protection to foreign copyrighted work was
because before that time, the foreigner’s work would only be protected
when announced for the first time in Indonesia. By that means, the
work previously announced in another country, would not be provided
with legal protection in Indonesia. This provision was difficult to
implement. This alteration, however was directed to the providing of
legal protection, if the Country of Copyright Holder:
a. Have a bilateral agreement in Copyright Protection with Indonesia,

or
b. Participated in multilateral in Copyright protection, and Indonesia

was also a member in it.
But because of the participation in such multilateral agreement

need a long time to be studied, and often must be followed with a
substantive adjustment at the minimum standard set in the agreement,
then the existence of bilateral agreement at least would be a bridge for
both country to provide protection to each other. The hope of legislator
with this alteration, was that Indonesia would be able to provide
something in effort to harmonize the relationship between countries in
this world especially in trade area.

Matrix 15
The Alteration of Act Number 6 of 1982 to the Act Number 7 of 1987

Based on time period

Altered The Material Altered Material poured in the Articles in
Substance of Articles of Act number 7 of 1987
Act Number 6
Time Period Copyright on work:
1. Regarding of 1982 a. book, pamphlet, and all kinds of
the time period written works;
2. Regarding The Copyright b. dance art ( choreography);
the Application enforced as c. all kinds of arts such as paintings,
of the long as the crafting, and statues;
regulation Author lives d. batik art;
plus 25 years e. song or music creation with or
after the without text, and
Author’s death f. architectural works;
Article 26
enforced as long as the author lives plus
50 years after the Author’s death

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The copyright Article 26
(1) Copyright on :
or photography
a. performance work like
work or musickarya pertunjukan seperti
musik, karawitan , drama,
cinematograph dance, wayang, pantomime,
and broadcasting works for
y work also example for media of radio,
television, and film, also video
works made recording;

based on the b. seminar, lecture, speech and
etcetera;
similar
c. map;
working in 15
d. cinematography works;
years
e. voice or sound recording;
calculated 15
f. translations;
years since
enfornced for 30 years since firs
announced for published

the first time (2) Copyright on :

(Article 27) a. photography work;

b. program komputer atau
komputer program;

c. adaptation and saduran and the
arrangement of collective
writing; enforced for 25 years
since first time published

(3) Copyright as mentioned in Article 26
paragraph (1) and Article 27
paragraph (1) possessed or held by
a legal institution, enforced for 50
years since first time published,
except the Copyright meant in
Article 27 paragraph (2) enforced
for 25 (twenty five) years.

Article 27

Source : Data processed by Saidin by comparing between the Act
number 6 of 1982 with the Act number 7 of 1987

In the Act number 7 of 1987, the alteration regarding time
period of Copyright protection was conducted in two forms :

1. Regarding the time period itself.

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2. Regarding the application of the regulation
The Act number 6 of 1982 basically provided protection as

long as the Author lives and until the 25th year after the Author’s death.
That time period lasted for all creations, except photography and
cinematography which were for 15 years. The alteration was as long as
the Author lives with addition 50 years after the Author’s death. By
that, the time period would be longer.

In accordance to that alteration, it could be found the reasons
of the Government which acted as the background of the alteration of
the Copyright Protection. The Government brought forward the reasons
and background of the thought which had connection adhered regarding
the social function of ownership right.

In the explanation, the Government also mentioned the time
period “as long as the author lives plus 25 years”, was judged as the
form of the social function itself. The thing was enacted for the whole
creation, except photography and cinematography, so that the form of
the social function principal only limited in the meaning of shortening
the time period. As understandable, if Bern Convention was made as
the basis, the time period was for “As long as the Author lives plus 50
years”.

The thought regarding this was indeed necessary to be
reviewed. The realization of social function was not necessary to be
translated or realized in the form of short time period. The weakness of
the way of thinking which all this time could be reviewed in the case of
photography and cinematography. Was because of the protection time
period only lasted for 15 years, the Copyright in those two fields could
be said had already fulfilled the social function? Was it true that even
though the society was impossible to pick any benefit in the time
period? From this way of thinking, the Government gave opinion that
the time period should be set “as long as the Author lives plus 50
years”. The imaginer limit for 50 years as mentioned, basically also
known in the Act number 6 of 1982.

Whereas the matter, regarding how to realize the social
function more effectively, the Government had introduced a
mechanism regarding the obligation to realize the creation or to give
license to another party. This mechanism was later known as
compulsory licensing. Through this mechanism, the Country saw that it
was necessary to judge that a creation or a work was very important to
the life of the society. The Country could obligate the Copyright Holder
to translate or duplicate the work in Indonesia. The Country could also
obligate the Copyright Holder to give the consent or license to another

181

party to translate or to duplicate with the fair fee. With this thinking,
the realization of social function was not only formal, but also could be
more operational and substantive.

Another side of the alteration in this field was in the
application or implementation of the regulation. Until today, the time
period of the protection is “As long as the Author lives plus 25 years”
is generally applied. It means, all of the creation was given protection
on its Copyright for the same time. It was not differed from another, for
example, between the time period of Copyright protection of a song
writer, with the Copyright on the song as possessed by a recording
company. By other words, it could not be differed the real (original)
Copyright with the derivative Copyright. This is necessary to be
concerned from the side of Justice.

Based on this thinking, in the Act was then pointed the
difference between the time period of the protection by paying attention
on the characteristic of the Copyright. Except some creations such as
photography, computer program, and creations with the characteristic
like collected poetries, which specifically provided protection only for
25 years, then for an original Copyright needed to be provided
protection “As long as the Author lives plus 50 years”. This enforced
for Copyright such as song or music, book creation, and etcetera.
Whereas for the derivative ones, such as music or song recording by the
recording company, for book publishing by the publishing company,
the Copyright only provided for 50 years.

The next alteration was regarding the relationship between
countries and Copyright Holder. The Matrix below shall explain that
for the national purpose and education, the country can conduct its role
to utilize the Copyright. Of course this was conducted without intention
to put the other Author in vain and also without the intention that the
country would take the commercial benefit.

182

Matrix 16
The Alteration of Act Number 6 of 1982 to the Act Number 7 of 1987

Based on the Relationship between Country and Copyright Holder

Altered Materials of Articles Act Alteration Material poured in
Substance No. 6/1982 Articles Act number 7 of 1987

Relationship (1) For national purpose, (1) For the purpose of
between
Country and every translation from education, science, and
Copyright
Holder a foreign language activities in research and

creation into development, a creation

Indonesian or local protected copyright and

language shall not be for 3 (three) years after

assumed as copyright announced not translated

infringement with in Indonesian or

provisions: duplicated in the country

a. creation came from (Indonesia), the

other Country at least government after listening

three (3) years since to the Copyright Council

published and never could:

translated to Bahasa A .obliged the Copyright

Indonesia or local Holder to conduct the

language before. translation himself

b. translator had asked and/or the duplication

for consent for of the creation in the

translating from the country of Indonesia in

Copyright Holder but the decided time;

the consent was not b. obliged the Copyright

achieved in 1 (one) Holder to give consent

year since the to another person to

application proposed. translate and/or

(2) for the translation as duplicate the creation

mentioned in Article in Indonesia for certain

(1) item b, need consent time, in the matter of

from the Justice the Copyright himself

Minister. did not implement

(3) the Justice Minister set himself or stated his

the fee to the Copyright unwilling to implement

Holder in providing his obligation as

consent for the mentioned in item a.

translation hearing the c. implement himself the

consideration of the translation and/or the

Copyright Council as duplication of the

mentioned in Article 39 creation, in the matter

183

Article 15 of the Copyright

(1) remembering the Holder did not
provisions in Article 48
Sub b then for national implement the
purpose, the creation of
non Indonesian citizen obligation as
and foreign agency can
be duplicated for the mentioned in item b.
purpose of use in
Indonesian Republic (2) implementation of the
terrirory, with
provision: provision as mentioned in
a. creation of non
Indonesian citizen, in Paragraph (1) item b and
2 (two) years
announced shall be item c with the
not enough to be
duplicated in compensation which
Indonesia
b.it had been asked for amount set by the
consent to duplicate
the creation, but the government.
consent was not
achieved in 1 (one) (3) Further implementation
year since the last
request proposed regarding the perovision as

(2) Duplication as mentioned in paragraph (1)

and paragraph (2) regulated

with the Regulation of the

Government.

Article 15

The government after listen to

the consideration of the

Copyright Council, can prohibit

the announcement of every

creation that contradict with the

policy of the government in the

field of defense and security of

the country, morality and
general public order”.

Article 16

184

mentioned in paragraph
(1) item b, shall not be
considered as
Copyright infringement
(3) to duplicate the creation
as mentioned in
Paragraph 1, consent of
Minister of Justice is
necessary.
(4) the Justice Minister set
the fee to the Copyright
Holder in giving
consent of the
Duplication, hearing
the consideration of
Copyright Council as
mentioned in Article 39
Article 16

Source : Data processed by Saidin by comparing between the Act number 6 of
1982 with the Act number 7 of 1987

Two main issues in this field, in accordance with the negation
of the provisions regarding the take-over or “expropriation” of a
Copyright as regulated in Article 10 paragraph (3) and paragraph (4)
the Act number 6 of 1982, and the substitution of the provision in
Article 15 and 16 in the “compulsory licensing” mechanism. Differed
with another ownership right in intellectual property field, which all
born because proposed to and given by the Country. Compared with,
for example Patent Company or Brand Company and Trade Mark, and
industrial design product which all proposed to and given by the
country, the Copyright grow together with the birth of a copyrighted
work, a creation. Because of that, it is appropriate to be considered that
the take-over to be not conducted. This thing was a bit easier compared
with the scoped fields, such as science, art, and literary. In the effort of
the development of the vibe of the creation in those fields, the
Government suggested that it is not appropriate the take-over to be
implemented. At least, even if there were fields necessary for certain
goals, or for the application in society, it is enough to be conducted
with another better way that is the obligation to conduct or realize the
works through compulsory licensing mechanism. This step, will then

185

show more maturity of the society of Indonesia as a nation with
sovereignty.

In line with that thought, the government was also reviewed
the provision of Article 15 and Article 16 of the Act Number 6 of 1982
regarding the “national interest” and its application. As we know, the
difficulty this whole time was because we have to explain the definition
or limitation of those words. We did not even clearly provide the
measurement, criteria, or a definite factor of that “national interest”. In
one side, the term was indeed seemed like able to provide a juridical
benefit which is very wide in range and unlimited. Even so, if that
benefit was really exist, the experience in the application of the Act
number 6 of 1982 also showed that the provision in Article 15 and
Article 16 can be said as never been realized before, because it has
never been utilized before.

Besides that, the provisions of both Articles in a whole also
need a review in the concept of the thinking. If for instance the
“national interest” became the point of departure, then this country is
what suppose to be the most authorized party to appoint the existence
of the national interest. The Country is the most knowing when the
national interest is really needed. It would become a bit peculiar, when
the appointment of the existence of the national interest is just given to
an individual to judge and to appoint, and then took their own steps in
it. Indirectly, that condition would give the impression that the
Country, in silence provide a chance and let its citizen to do an activity
that put another party in disadvantage. This condition would finally put
the country in a very difficult situation, inside or outside.

Philosophically, the country is indeed must put more attention
to the interest of its society in the utilizing of the Copyright. The
Copyright just like the other rights must run the social function and not
only for the interest of the Author or the Right Holder. The goal or the
idealism of the country was supposed to be able to be read in the
preamble of every Act born as the policy or the national legal
development policy. The ideological or philosophical opinions can be
understood in the preamble of Act number 8 of 1982 and Act number 7
of 1987. For the comparison, it can be seen in this matrix below.

186

Matrix 17
The Regulation Basis of the Publishing of Act number 6 of 1982 and

the Act number 7 of 1987

Preamble Preamble
Act No. 6/1982 Act No. 7/1987
a. For the development in the
field of law as meant in the a. that providing the legal
General Outline of the
Country, the Decree of the protection on Copyright
Assembly of Representative
Number IV/MPR/1978), basically was meant as an effort
and also to push and protect
the creation, the spread of to realize a better vibe fort the
the cultural result in
science, art and literary and growth and developing area
also to accelerate the
development of the which have passion in science,
intelligence of the life’s
nation in the arena of art, and literary.
Indonesian Republic based
on Pancasila and The b. that in the middle of the
Constitution of 1945, then it
is necessary to regulate the implementation of the
Copyright Law;
b. that based on the issue in accelerating national
item a then the regulation
regarding copyright based development, especially in
on Auteurswet 1912
Staasblad Number 600 of science, art, and literary, it is
1912 need to be revoked of
its incompetence with the also have been developed the
need and the goal of legal
future goal. Copyright violation, especially

in piracy.

c. that the Copyright violation has

reached a dangerous rate and it

is able to damage the social life

order in general and the passion

to create in specific.

d. that to handle and stop the

Copyright violation, it is

necessary to alter and perfected

some provisions in the Act

number 6 of 1982 regarding

Copyright.

Source : Data processed by Saidin by comparing between the Act
number 6 of 1982 with the Act number 7 of 1987

Based on the consideration brought forward by the legislator
in the Act number 6 of 1982, it can be understood that inside it, there
was basic philosophical consideration containing the ideas and

187

suggestions or goals of the national law establishment. But, that kind of
issue could not be seen anymore in the Act number 7 of 1987. The
latter Act was said to lost the spirit which gave the leverage to the
regulation of that national copyright law.

The Copyright Law number 7 of 1987 was enforced for 10
years. In the journey, what had become the suggestion of alteration of
the Act was not entirely can be realized. As long as the 10 years
enforcement of this Act, the Copyright violation of piracy did not show
the good side. Also, the government’s effort to conduct the compulsory
licensing to accelerate the use of national interest did not optimally
used. Finally the Act must be altered in 1997.

E. The Period of Copyright Law Number 12 of 1997 (1997 – 2002)
The Act Number 12 of 1997, was the first Act in the field of

Copyright Protection in Indonesia after the ratification of GATT
1994/WTO through the Act number 7 of 1994, which contain the
TRIPs Agreement and the protocol or the attachments, Indonesia was
obliged to adjust its regulation of Copyright with the International
Agreement. TRIPs Agreement also obliged the signee countries to
subject to the international conventions regarding Copyright such as :
Bern Convention and Rome Convention 1961.

The Act Number 12 of 1997 though before the born was based
on the previous Act, if we see the Act that replaced by it, also was
based on the Bern Convention and politically the born of it was
influenced by many pressures from Industrial Countries (As countries
which have interest with Copyright) especially America.

Since early 1980s, America has shown its concern to the
important meaning of Copyright protection. This concern was not
without reason, because America had other motivation behind the
concern. One of the American motivations was, with the level of
awareness of the world’s citizen especially the developing countries
which had the potential to conduct Copyright violation, then it
strengthen the competent of America in the field of technology.
Because nevertheless, Copyright is so close with the technology, if the
competent of American technology is stronger, then the deficit of the
trade of various nation (especially Japan) this issue will strengthen the
position of American economy. Moreover, America was hoping that
the competition of America in technology would be stronger, this issue
would strengthen the existence and trade’s obstacles of American
companies outside the nation. This was what Dylan A MacLeodi called

188

as one sided pressure which conducted by America in the Intellectual
Property Right Protection Policy as stated:

Since the early 1980s, the United States of America has
heightened its concern over violations of American intellectual
property rights in foreign countries. This concern has been
principally motivated by a growing awareness of declining
American competitiveness particularly in high technology
fields, surging trade deficits with many countries (Japan being
the most notable), and the perceived existence of invisible trade
walls which keep U.S. firms out of many foreign markets. The
United States has been moving both unilaterally and
multilaterally to achieve the goal of better protection of
American intellectual property rights abroad. The most
prominent unilateral measure to be employed has been Section
301 of the Trade Act of 1974, and its offspring ”Super 301”
and ”Special 301”. These allow the United States to retaliate
against countries that do not adjust their laws and practices
into conformity with U.S. requirements.130
The one sided move of America to obtain optimal protection
on the American Intellectual Property in many countries especially in
developing countries with the implementation of the trade policy. To
the countries which was not adjusting the Copyright law with
America’s demand, then America could implement economic
punishment one sided. At least, that was corrected by Section 301 of
the Trade Act 1974.
This desire of America then was accepted well in Uruguay
Round which resulted the General Agreement of Tariffs and Trade. In
that Agreement, the American side emphasized to be provided more
protection on intellectual property. This desire then accepted well in the
TRIPs Agreement. This was by many community called as “aggressive
unilateralism” of America as revealed by Dylan A. MacLeodt. By
taking examples in Malaysia, Thailand, and Indonesia, Dylan revealed:
The Uruguay Round of negotiations of the General Agreement on
Tariffs and Trade (GATT) the United States has been pushing for
stricter international protection of intellectual property rights.
Unilaterally, the United States is evincing a more stringent attitude
towards violators of American intellectual property rights. This is

130 Dylan A. MacLeodt, U.S. Trade Pressure and The Developing Intellectual
Property Law of Thailand, Malaysia and Indonesia, in Reading Material Hak Kekayaan
Intelektual, Universitas Indonesia, Post Graduate Law Faculty, Jakarta, 2007, p. 365.

189

consistent with U.S. trade policy more generally, which one
commentator has described as ”aggressive unilaterilsm”. This tougher
approach on intellectual property protection manifested itself in 1991 in
the designation of Thailand, India and the People’s Republic of China
as ”priority foreign countries” under Special 301, which had the effect
of warning these countries that without substantial change to their
intellectual property law and practies, the United States would employ
retaliatory trade measures, Malaysia, Indonesia and Thailand have all
been subject to American pressure to alter their respective intellectual
property law, although they have responded differently to the American
threats of retaliatory trade action Indonesia and Malaysia have moved
much more quickly to satisfy U.S. demands and have appreared more
willing than Thailand to appease the United States.131

At the beginning, Intellectual Property Rights had not been
a part of GATT, but then America’s pressure so the Intellectual
Property was put to the GATT’s structure. The disadvantages by
America especially the massive piracy of song recording and
cinematography in the three countries (Indonesia, Malaysia and
Thailand) caused disadvantages in the recording industry in United
States.

Beside the pressure from America to put the Intellectual
property Right in the GATT’s structure, the suggestion was also come
from European Community. On July 1988, as written by Agus
Sardjono, European Community proposed “Proposal of Guidelines and
Objectives” :

(1) They should address trade-related substantive standards in
respect of issues where the growing importance of intellectual
property rights for international trade requires a basic degree
of convergence as regards the principles and the basic features
of protection.

131 Dylan A. MacLeodt, U.S. Trade Pressure and The Developing Intellectual
Property Law of Thatiland, Malaysia and Indonesia, in Journal University of British
Colombia Law Review, Vol 26 : (Summer 1992), p. 344. The Uruguay Round had
resulted negotiation on some agreements poured in the General of Tariffs and Trade
(GATT), America had emphasized that for a better protection on the intellectual property.
One sided, America has proved its subjection to the offender of American Intellectual
Property Rights. This is in line with the American Trade Politic Generally. One of the
Commentators explained it as “aggressive uniteralism”. This gave the conclusion that
Copyright protection was given meaning by America itself in 1991 in many meetings in
Thailand, India, and Chinese People Republic as “priority countries” under the special
regulation 301, and it brought effect also became warning to the countries to conduct big
effects on the Copyright Law and the law enforcement in their countries.

190

(2) GATT negotiations on trade related aspects of substantive
standards of intellectual property rights should not attempt to
elaborate rules which would substitute for existing specific
conventions on intellectual property maters, contracting
parties, could, however, when this was deemed neccesary,
elabrate further principles in order to reduce trade distortions
or impediments. The exercise should largely be limited to an
identification of an agreement on the principles of protection
which should be respected by all parties ; the negotiations
should not aim at the harmonization of national laws.132
Second opinion regarding industrial countries was given by

India. India was disagreeing and objecting the suggestion of industry
countries to put the intellectual property right in GATT’s structure,
because of that, India was not in agreement with that suggestion as
taken by Agus Sardjono133 by saying:

It would ... not be appropriate to establish within the framework
of the GATT any new rules and disciplines pertaining to
standards and principles concerning the availability, scope and
use of intellectual property rights”.
Moreover, Agus Sardjono134 brought forward that the
challenges by India regarding the suggestion to put the Copyright
Protection in GATT’s structure was based on three important reasons:
First, the possessor of the Copyright can conduct what is called
by restrictive and anti competitive practices which became
obstacle of the international trade. Second, the preincipal and
standart regarding the Copyright must first be checked if it is in
line with the need of the Developing Countries. Thired, it must
be emphasized that the essence of Copyright protection was its
characteristic which is monopolistic and restrictive.
The Copyright protection would give a very bad effect on the
developing countries, remembering 99% of patents in the world
is possessed by developed countries. India proposed that
Copyright Protection was to be given fully to every country to
appoint themselves according to the need and condition in each
country.

132 Agus Sardjono, Pembangunan Hukum Kekayaan Intelektual Indonesia
Antara Kebutuhan dan Kenyataan, Establishment Speech of Professor in Private Law in
Law Faculty, University of Indonesia, Depok, 2008, p. 5.

133 Ibid.
134 Ibid, p. 8.

191

Even though India objected the suggestion of those developed
countries with the reason as mentioned above, finally the issue
regarding intellectual property right was also put in the GATT’s
structure. That means, the developed countries was succeded in the
negotiation and the winning was in their hands. They were even more
succeeded when the TRIPs Agreement was made as a protocol to be
made next as the structure or reffeence of the signer countries in
adjusting or inlining the Copyright regulation in the country. Of course
the process of transplantation of TRIPSs Agreement national legislation
of each signer country was the consecuention of the developing
countries’ failure to object the desire of the developed countries’ desire.
By that, i could not be avoided anymore the domination of Western
way of thingking which backgrounded by capitalist ideology started to
step on developing countries, live with its legal tradition which had
different ideology especially in Asian Countries like : Indonesia,
Thailand, Malaysia and also India.

Indonesia finally ratified the GATT 1994/WTO which included
the TRIPs Agreemnt with the consequence that Indonesia must adjust
its national Copyright Law (including all regulations related to the
intellectual Copyright Protection such as : patent, mark, industrial
design, and et cetera). Especially for Copyright Law, Indonesia msut
alter back the Act Number 7 of 1987 with the Act number 12 of 1997
by adding some addition Articles and adjusting some Articles inline
with TRIPs Agreemnt. Some of the reasons of the alteration will be
explained in the next part.

Some ideological-philosophical, juridical- normative
considerations and political consideration of the alteration Act number
7 of 1987 with the Act Number 12 of 1997 can be seen in the Preamble:
a. That Indonesia is a country with variety of ethnics/tribes and

cultures and wealth in art and literature with the developments
which needed protection of Copyright in intellectual property
which born from those variations.
b. That Indonesia has been a member of international
convention/agreemnt in the field of Intellectual Property Right
commonly, and Copyright especially which i need of the further
implementation on the national legal system.
c. That the development in trade, industry, and investation has
developed enough that i need of more protection for the Author

192

and the Related Right Owner ny paying attention to the interest of
the society;135

It is not very clear though, the ideologic – philosophic suggestion
pictured in the preamble above, except putting the desires and interests
of the foreign to the Indonesian Copyright Law. This explanation was
supported by the sentence which stated that : ”Indonesia has been a
member of various international convention/agreement” and it needed
further implementation in the national legal system”. It is very clear
that it can be caught that the legal policy in Indonesia really wanted to
transplant the international convention to the National Copyright Law.
Of course what was meant is International Convention regarding
Copyright such as: Bern Convention, Rome Convention and at last
TRIPs Agreement. If the legal policy like these implemented, it is
without any doubt that the interest of foreign law would be a primary
priority of this Act alteration. Even though the goal of this Act
alteration was not just mere like that. In many explanation, there was 3
(three) political consideration (including legal consideration) which
also was the goal of the Copyrigt Law alteration number 7 of 1987 to
the Copyright Law number 12 of 1997 that are:

(1) Providing of legal protection which is becoming more
effective to the Intellectual property Right, especially in
Copyright need to be accelerated in realizing a better vibe of
the growing and developing the spirit to create in science, art
and literary, which is needed in the implementation of national
development with the goal to realize a fair, welfare, and
independent Indonesian society based on Pancasila and
Constitution of 1945.

(2) Implementing the obligation to adjust the national regulations
in the field of Intellectual Property Right including Copyright
on TRIPs.

(3) Altering and Perfecting some provisions od Act of Copyright
number 6 of 1982 regarding Copyright as altered with the Act
of Copyright number 7 of 1987 with the regulations.
If these three politic considerations (including legal

consideration) The Copyright Law number 12 of 1997 compared with
the legal consideration used to alter Copyright law number 6 of 1982, it
can be seen enough defferences regarding the reason used to conduct
the alteration of the law.

135 Preamble Act number 12 of 1997 part Considering item a, b, and c.

193

In the consideration Copyright Law number 7 of 1987 was
emphasized more on the Copyright violation which considered had
achieved a dangerous rate and can damaged the social structure of the
society in general and the passion to create specially.

Beside that, it can not be avoided anymore that by the time the
Copyright Law Number 1987 enforced, the developed industrial
countries powered by United States, pushed the developing countries,
including Indonesia, by doing political and economical pressures in the
effort to achieve legal protection as good as possible to the Intellectual
Property Right’s products marketed in developing country in need.
Indonesia is one of the developing countries which in fear of not
accepting anymore beneficial treatment by United States which acted as
the soldier in the developed industrial countries.136 The legal
consideration used in Copyright Law number 12 of 197 to alter the
Copyright law number 7 of 1987 as contained in the preamble, caused
the Indonesia’s membership in the international convention/agreement
such as TRIPs Agreement137 which was a part of the agreement of the
making of World Trade Organization brought effect on the occurance
of the obligation to adjust national legislation in the field of Intellectual
property Right including Copyright.

The reasons of the alteration can be found in the explanation on
the Act number 12 of 1997 regarding the Act number 7 of 1987 of
Copyright:

136 Read Sudargo Gautama, Pembaharuan UUHC 1997, Citra Aditya Bakti,
Bandung, 1997, p. 129.

137 With the membership of Indonesia as developing country in the TRIPs
Agreement would cause certain benefits as one of the example is brought forward in the
writing by UNCTAD Secretariat with the title The Trips Agreement and Developing
Countries, New York and Geneva, 1996 ; p. 38 :

Literary and artistic creativity is universally distributed, and situational
disadvantages seldom preclude authors in developing countries from entering domestic
or foreign markets. Many developing countries participate fully in these markets. Such
rights thus become vehicles for the development of authonomous cultural industries
everywhere and for the preservation and enhancement of the developing country’s own
cultural heritage. Even mandatory recognition of neighbouring rights affords
opportunities to countries whose music, dance and folklore are important components of
the national heritage, as attested by the fact that over half of the parties to the Rome
Convention are developing countries. Hence, authors of literary, artistic and scientific
works in all member countries may benefit from a strengthened protection of their rights
on an international scale. Cinematographic authors, in particular, have explicitly
recognized rental rights under the TRIPS Agreement, although subject to a broad
exception (Article 11). This recognition may benefit many developing countries,
particularly those that have been able to develop strong film industries.

194

First, there was a will from the Government to react to the
Decree of the Representative Assembly Number II/MPR/1993
regarding the Outline of the State Policy which asserted that the
development of the world, containing chances that accelerate the
national growth, need to be utilized well. In accordance with the
Outline of the State Policy, every development, alteration, and another
global issues which predicted can influence the Ntional Stability and
the achievement of national goal also need to be followed carefully, so
the steps to anticipate can be taken. One of the stunning development
that got attention in this last ten decades and has possibitiy to still be
given attention for the future is the widespread of the globalization in
social, economy, culture, or in the other fields. In the field of trade,
especially because of the development in information technology and
trasportation, has made the activity in this sector increased and even
placed the world as a single market together. By paying attention to this
reality and tendency, it was becoming more understandable that the
demand to regulate for legal protection was necessary. Much less some
country were counting on economic activity and its trade on products
that resulted by the intelligence of human such as works in the field of
science, art, and literary.

Second, there was will from Government to assist the
acceleration of the world’s economic growth and to respond well to the
General Agreemnt on Tariff and Trade (GATT) which was a
multilateral trade Agreement. This choice was actually an economic
policy launched by capitalists countries to create the free trade bt
providing the same treatment to international businessmen in many
parts of the world. The aim was to after the economic growth in order
to objectify the welfare of the human.

Third, there was a belief from the Government that by creating
the legislation in line with TRIPs Agreement can support national
economic activity. TRIPs Agreement contained norms and standards of
protection for the intellectual works of human and placed the
international Agreement in the field of Intellectual property as the
basis. Beside that, the Agreement was also regulate the legal
implementation regulation in the field of Intellectual Property Right
strictly. As a signing country of the Uruguay Round Agreement,
Indonesia had ratified the Agreement package with the Act number 7 of
1994 regarding Agreement Establishing The World Trade
Organization. In line with that policy, to support the national growth
activity, especially by paying attention to various development and
alteration, Indonesia that already had Copyright Law since 1982 which

195

then perfected with the Act number 7 of 1987, need to make another
improvement with the Law. Beside to improve some provision which
was felt not giving enough protection to the Author, it was also felt
necessary to ma make adjustment with the TRIPs Agreement. The goal
was to delete obstacles especially to provide supporting facilities to
increase the economic growth and the trade, both national and
international.

Referring to the consideration above, the Act number 7 of 1987
needed to be altered to answer the challenge and also to accomodate the
will and hope as referred to.

With Indonesia that has become the member GATT 1994/WTO
officialy, which inside the Agreement contained the TRIPs Agreement,
then the latter Agreement was made as the framework in regulating
Intellectual Property Right Law in Indonesia, including Copyright Law.

This following matrix shows us some provision in TRIPs
Agreement that transplanted into the Act number 12 of 1997.

Matrix 18
Transplantation of TRIPs Agreement into the Act Number 12 of 1997

Regarding Rental Rights

Substance TRIPs Agreement Act No. 12 Tahun

Rental In respect of a least computer program and 1997
rights cinematographic works, a Member shall
provide authors and their successors in title Rental on
the right to authorize or to prohibit the
commercial rental to the public of originals Copyright must
or copies of their copyright works. A
member shall be excepted from this obtain the consent
obligation in respect of cinematographic
works unless such rental has led to from the Author
widespread copyring of such works which is
materially impairing the exclusive right of or Right Holder.
reproduction conferred in that Member on
authors and their successors in title. In (Article 1
respect of computer program, this obligation
does not apply to rentals where the program paragraph (2)
itself is not the essential object of the rental.
(Article 11) and(3))

Source : Data processed by Saidin by comparing the Act number 12 of 1997
with TRIPs Agreement.

196

The matrix above showed that, the power of the will of the
developed countries to protect the works in computer program and the
cinematography was so strong that Indonesia must transplanted Article
11 of the TRIPs Agreement to the Article 2 paragraph (2) and
paragraph (3) the Act number 12 of 1997. Whereas, if systematically
analyzed, Copyright is an intangible object and because of that, subject
to legal object principle in terms of the transfer of the right and also in
renting which subject to law of engagement. By transplanting Article
11 TRIPs Agreement to Article 2 paragraph (2) and paragraph (3) the
Act number 12 of 1997, then this legal norm would be out from object
legal system and deviated from engagement law system. The principal
adhered by object law was: Anybody who has already obtained the
transfer of object right perfectly, then the possessed object would be his
possession and the consequence would be that the owner has an
absolute right on the object. This legal principle was out from the
object legal system when someone buy VCD and DVD of
cinematography must ask the consent of its Author or Right Holder to
be rented to the third party. This article was so perfect to adopt the
capitalist values in managing the economic sources. By other words,
capitalist ideology from the Western Law has been transplanted
perfectly by the legislator of National Copyright Law by transplanting
Article 11 TRIPs Agreement into Article 2 paragraph (2) and paragraph
(3) Act number 12 of 1997.

Matrix 19
Transplantation of TRIPSs Agreement into the Act number 12 of 1997

Regarding Neighbouring rights

Subst Rome Convention TRIPs Agreement Act number
ancei
1961 12 of 1997
Neig
h- PERFORMANCES Protection of Performers, (1) The offender
bouri
ng PROTECTED. Producers of Phonograms has special
rights
POINTS OF (Sound Recordings) and right to

ATTACHMENT Broadcasting give

FOR Organizations consent or

PERFORMERS 1. In respect of a fixation of prohibit
Each Contracting State
their performance on a people

shall grant national phonogram, performers without

treatment to shall have the possibility consent to

performers if any of of preventing the following make,

the following acts when undertaken duplicate,

197

conditions is met: without their authorization: and
(a) the performance
takes place in another the fixation of their unfixed broadcast
Contracting State;
(b) the performance is performance and the the
incorporated in a
phonogram which is reproduction of such recording
protected under Article
5 of this Convention; fixation. Performers shall and or
(c) the performance,
not being fixed on a also have the possibility of picture
phonogram, is carried
by a broadcast which preventing the following from the
is protected by Article
6 of this Convention. acts when undertaken performanc
(Article 4)
without their authorization: e. Pelaku

the broadcasting by memiliki.

wireless (2) Recording

means and the producer

communication to the has a

public of their live special

performance. right to

2. Producers of phonograms give

shall enjoy the right to consent or

PROTECTED authorize or prohibit the prohibit

PHONOGRAMS: 1. direct or indirect people

POINTS OF reproduction of their without

ATTACHMENT phonograms. consent to

FOR PRODUCERS 3. Broadcasting duplicate

OF organizations shall have the the

PHONOGRAMS; 2. right to prohibit the recording

SIMULTANEOUS following acts when of voice or

PUBLICATION; undertaken sound.

1. Each Contracting without their authorization: (3)

State shall grant the fixation, the Broadcastin

national treatment to reproduction of fixations, g institution

producers of and the rebroadcasting by has special

phonograms if any of wireless right to

the following means of broadcasts, as give

conditions is met: well as the communication consent or

(a) the producer of the to the public of television prohibit

phonogram is a broadcasts of the same. people

national of another Where Members do not without

Contracting State grant such rights to consent to

(criterion of broadcasting organizations, make,

nationality); they shall provide owners duplicate,

(b) the first fixation of of and re-

the sound was made in copyright in the subject broadcast

another Contracting matter of broadcasts with the record

State (criterion of the possibility of preventing through

fixation); the above acts, subject transmissio

(c) the phonogram was to the provisions of the n with or

198

first published in Berne Convention (1971). without

another Contracting 4. The provisions of Article cable, or

State (criterion of 11 in respect of computer through

publication). programs shall apply another

2. If a phonogram was mutatis mutandis electromag

first published in a to producers of phonograms netic
non–contracting State
and any other right holders system

but if it was also in phonograms as ((Articlel 43C)

published, within determined in a Member's

thirty days of its first law. If on 15 April 1994 a

publication, in a Member has in force a

Contracting State system of equitable

(simultaneous remuneration of right

publication), it shall be holders

considered as first in respect of the rental of

published in the phonograms, it may

Contracting State. maintain such system

3. By means of a provided that the

notification deposited commercial rental
with the Secretary–
of phonograms is not giving

General of the United rise to the material

Nations, any impairment of the exclusive

Contracting State may rights of reproduction

declare that it will not of right holders.

apply the criterion of 5. The term of the

publication or, protection available under

alternatively, the this Agreement to

criterion of fixation. performers and producers

Such notification may of

be deposited at the phonograms shall last at

time of ratification, least until the end of a

acceptance or period of 50 years

accession, or at any computed from the end of

time thereafter; in the the calendar

last case, it shall year in which the fixation

become effective six was made or the

months after it has performance took place.

been deposited. 1961 The term of protection

(Article 5) granted

pursuant to paragraph 3

PROTECTED shall last for at least 20

BROADCASTS: 1. years from the end of the

POINTS OF calendar year in which the

ATTACHMENT broadcast took place.

FOR 6. Any Member may, in

199

BROADCASTING relation to the rights

ORGANIZATIONS; conferred under paragraphs

2. POWER TO 1, 2 and 3, provide for

RESERVE conditions, limitations,

1. Each Contracting exceptions and reservations

State shall grant to the extent permitted by

national treatment to the Rome Convention.

broadcasting However, the provisions of

organisations if either Article 18 of the Berne

of the following Convention (1971) shall

conditions is met: also apply, mutatis

(a) the headquarters of mutandis,

the broadcasting to the rights of performers

organisation is situated and producers of

in another Contracting phonograms in

State; phonograms. (Article 14)

(b) the broadcast was

transmitted from a

transmitter situated in

another Contracting

State.

2. By means of a

notification deposited
with the Secretary–

General of the United

Nations, any

Contracting State may

declare that it will

protect broadcasts only

if the headquarters of

the broadcasting

organisation is situated

in another Contracting

State and the broadcast

was transmitted from a

transmitter situated in

the same Contracting

State. Such

notification may be

deposited at the time

of ratification,

acceptance or

accession, or at any

time thereafter; in the

last case, it shall

200

become effective six
months after it has
been deposited.
(Article 6)

Source : Data processed by Saidin by comparing the Act number 12 of
1997 with TRIPs Agreement.

Also with the entry of the Article regarding neighbouring right
into the Copyright Law number 12 of 1997 was transplantation result
from Article 14 from TRIPs Agreement which adopted before from
Article 4, 5 and 6 of Rome Convention of 1961. Of course the
transplantation of this TRIPs Agreement was a realization of the
winning of developed countries to the developing countries to put in the
suggestion of neighbouring right protection to the National Copyright
Law in the countries including Indonesia. It is necessary to understand
that TRIPs Agreement is a cooperation break-trough in international
trade which point is that to guard the interest of developed industrial
countries as countries which gave birth to Intellectual Property Right. It
is unimaginable if the broadcasting right or the performance of the
actresses or actors in developed countries being broadcasted through
electronic media, but then the broadcasting right must be paid or at
least the broadcasting must first obtained consent first from the Right
Holder which was in the the category of right which had connection
with Copyright (neighbouring rights). For developed industrial
countries, these kinds of thing were something natural. But for
developing countries, the royalty for paying the neighbouring rights
would be production burden in broadcasting in electronic media. All
this production burdens would be held by broadcasting industry which
in turn would also held by the commercial owner and the commercial
finally would become burden for the society as the consumer of the
products in the commercial. This is what would go on for the sake of
developed countries in order to have protection of the intellectual
property rights in the whole world (at least in the signer countries of
TRIPs Agreement) through each national’s legislation.

Also with the entry of license regarding license as regulated in
Article 21 TRIPs Agreement in Article 38A, 38B and 38C Act number
12 of 1997 was as a prove of Indonesia’s weak position in fighting for
the national interest when facing with developed countries in Uruguay
Round which resulted GATT/WTO Agreement. The following matrix

201

showed the legal norms of TRIPs Agreement which transplanted into
the Act number 12 of 1997.

Matrix 20
Transplantation of TRIPS Agreement into the Act number 12 of 1997

Regarding Copyright License

Substance TRIPs Act No. 12 Tahun 1997

Copyright Agreement
Substance
Licensing and (1) Copyright Holder is entitled to

Assignment provide license to another party

Members may based on license agreement

determine letter to implement action as

conditions on the referred in Article 2.

licensing and (2) Unless promised otherwise, then

assignment of the scope of license as said in

trademarks, it paragraph 1 was on all actions

being as said in Article 2 is on for as

understood that long as the time period of

the compulsory license given and enforced for

licensing of every territory of Republic of

trademarks shall Indonesia.

not be permitted (Article 38 A)

and that the Unless promised otherwise, then the

owner of Copyright Holder can conduct

a registered himself or provide license to the

trademark shall other third party to implement the

have the right to action as said in Article 2.

assign the (Article 38B)

trademark with (1) The license Agreement is

or without the prohibited to contain provision

transfer of the direct or indirectly can cause

business to effect that put Indonesian

which the economic state to be in vain.

trademark (2) for having legal effect on the

belongs. third party, the license

(Article 21) Agreement must be listed in the

Copyright office.

(3) the license Agreement listing

request that contain provisions

as said in paragraph (1) must be

202

rejected by Copyright office.
(4) further provision regarding the

license, including the listing
method regulated further with
Government Regulation.
(Article 38 C)

Source : Data processed by Saidin by comparing the Act number
12 of 1997 with TRIPs Agreement.

The interest of developed countries dominantly placed in the
Act number 12 of 1997 which transplanted from Article 21 TRIPs
Agreement. License was reallt attached with the protection of
Intellectual Copyright which connected with investment. Investment
always present in the shape of technology. If technology that invested
would be implemented in one country by one nation, then the
requirements asked by the country that would do the investment was
the security on the Intellectual property Right protection in the country
where the investment being placed. Usually, the ones who need those
investments are the developing countries. When the developing
countries could not provide protection to the Intellectual property
Rights then the investors from developed countries were reluctant to
invest in those developing countries. License is and instrument from
investment that need to be protected. America and other developed
industrial countries had even made important requirement of
Intellectual Property Right for the choice to do investment, as William
C. Revelos138 stated cited by Agus Sardjono.

The other parts which got addition was more meant to
strengthen or emphasize the need of original element of one work to
obtain Copyright Protection. A work must have typical shape and show
the originality as someone’s creation based on the personal ability and
creativity. In a typical shape, means that the work must have been
realized so it can be seen, listened, or read. Including in definition of
readable thing is the read of Braille alphabet. Because a work must be
realized in typical shape, then the Copyright protection could not be
given just in idea. According to this provision, an idea basically did not

138 William C. Revelos, Patent Enforcement Difficulties in Japan : Are There
Any Satisfactory Solution for the United States, George Wahington Journal of
International Law and Economy, (Vol. 29, 1999), p. 529.

203

obtain any Copyright protection. Because idea has not possessed a
shape which is possible to be seen, listened, or read.

Also, regarding the phrase, “offender”. In this legislation, it is
need to be emphasized that the actual offender phrase was actually base
on the TRIPs Agreement which regulate the neighbouring rights.
Because of that, addition to the definition of offender must be added.

In the definition of performers, the mentioning of actor,
singer, musician and dancer showed the profession which basically
stated some of them whose activity were to perform, act, show, sing,
convey, declaim or to play a creation.

Whereas the definition of voice recording producer is they
who conduct the activity of direct recording on object who publish a
voice or a sound, including they who record voice or voice by
arranging differently, and not only by duplicating the existed recording.
The stated creation meant was in definition of recording institution of
audio, visual, or audiovisual. The broadcasting was for audio, and
audiovisual. The requirements in the shape of legal entity only enforced
for Private Broadcasting Institution.

Beside the addition of material such explained above, in the
Act number 12 of 1997 was also altered from the enforced Act before,
that was Act number 7 of 1987. The alteration can be seen in matrix
below.

Matrix 21
Alteration of Act number 7 of 1987 to the Act number 12 of 1997

Based on Protection Aspect on unknown creator or a creation

Altered Material of Alteration Explanation
Substance Articles Act Material poured in
number 7 of Country takes
Protection Articles Act over the
on unknown 1987 number 12 of Copyright
creator of a 1997 Materi which Creator
creation When a (1) If a creation is is unknown,
but the take
creator of a unknown of over was
the creator conducted for
creation is not and the the purpose of
creation has
known at all, not been
published
then Country yet, then
Country hold
hold the

Copyright on

that creation

unless proven

204

otherwise. the the Creator.
Article 10 A Copyright on
that Creation
for the
purpose of
its creator.
(2) If a creation
has been
published
but the
creator is
unknown or
on the
creation only
stated the
false name
of the
creator, then
the Publisher
hold the
Copyright on
the creation
for the
purpose of
the Creator.
Article 10A

Source : Data processed by Saidin by comparing between Act
number 7 of 1987 with Act number 12 of 1997.

The first alteration was regarding protection of the unknown,
in this case, the Country would take over the ownership for the sake of
the Creator which before, the word of “for the sake of the creator” was
not mentioned in Act number 7 of 1987. This alteration was meant to
emphasize the status of Copyright in an unknown work which is not or
has not been published yet, as if the creation is realized. For example,
in written or musical work, the creation has not been published in the
form of book or recording yet. In that case, then Copyright on that work
was held by the Country to protect the Copyright for the purpose for the
Creator, whereas the creation was a published written work, then the
Copyright on that certain Creation was held by the Publisher.

205

The Publisher was also considered as the holder of the
Copyright on the published creation using the false name of its Creator.
By that, a published creation but unknown of the creator or on the
creation only stated the false name of the creator, the publisher stated in
the creation which can prove as the first one to publish the creation,
shall act on behalf of the Creator. This is not applied when the Creator
then stated his identity and he can prove that the Creation was his
Creation.

Matrix 22
Alteration of Act number 7 of 1987 to the Act number 12 of 1997

Based on the exception of Copyright Violation

Altered Material on Articles of Material of Alteration which
Substance Act number 7 of 1987 poured in Article of Act
number 12 of 1997
Exception
of (1) If a creation was (1) If a creation was made in
Copyright
Violation made in official the official relation with

relation with another party in the

another party in the working environment,

working then the party which for

environment, then and in the official the

the party which for creation was done, was

and in the official of the Copyright Holder,

the creation done unless there was another

was the Copyright agreement between both

Holder, unless there parties without

was another decreasing the right of

agreement between the Creator as the

both parties, creator if the use of the

without decreasing creation was made

the right of the beyond the official

Creator, as the relation.

Creator when the us (2) Provision as stated in

of the Creator was Article (1) enforced for

beyond the official Creation made by

relation. another party based on

(2) If the creation was the order made in

made in working official relation.

relation with (3) if a Creation was made in

another party in the working relation or based

working 206
environment, then
the party who made on order, then the one
the work was the who made the creation
Copyright Holder, was considered as the
except promised Creator and Copyright
otherwise between Holder, unless promised
another party. otherwise by both parties.

(Article 8)

Source : Data processed by Saidin by comparing between The Act
number 7 of 1987 and Act number 12 of 1997.

The matrix above added the norm regarding the exception of
Copyright violation. The adding of the provision was to emphasize the
principal that Copyright on a creation made by someone based on
order, for example from the Government, unless promised otherwise,
was held by the Government as the Creator if the Creation was used for
anything beyond the official relation. If there was creation used for the
matter beyond official relation meant to make clear the existence of
Copyright in the matter of the Creation was born or made outside
official relation or based on order. Which means, the creation was made
in the working relation in private environment or made based on order
from private institution with another party or between individual with
individual.

Matrix 23
Alteration of Act number 7 of 1987 to the Act number 12 of 1997

Regarding the Time Period of the Work’s Protection

Altered Material of Articles Alteration material poured in Articles
Substance in Act number 7 of in Act number 12 of 1997

Works’ 1987 (1) Copyright on creation held or
protection (1) Time period of implemented by nation based on:
time period
the enactment of a. Provision Article 10 paragraph
copyright on the (2) item b, enforced in
creation unlimited time.
announced part
by part, counted b. Provision Article 10A
started since the paragraph (1), enforced for 50
last part of the (fifty) years since the work
announcement first known by public.

207

date (2) Copyright on creation which
(2) in appointing the implemented by publisher based
on provision of Article 10A
enactment time paragraph (2), enforced for 50
period of the (fifty) years since the work first
work’s copyright published.
which is more
than 2 (two) Article 27A
versions or more,
also the summary
and news
announced in
printed media in
different time,
then every
version or
summary and the
news each
considered as its
own creation.

Article 28

Source : Data Processed by Saidin by comparing the Act number 7 of 1987
with the Act number 12 of 1997.

The addition of this new provision was meant to clarify the
provision regarding the time period of protection for creations which
Copyright held by the country. The principal was, the creation which
copyright held by nation, provided with unlimited time protection.
Whereas for the creation which Copyright implemented by nation
provided with protection for 50 (fifty) years since the creation known
by society. This provision enforced on creation which author was
unknown. If then the identity of the author was known, or the author
itself then brought forward the identity in 50 (fifty) years after the
creation known by society, then what would be enacted was the
provision of Copyright protection in 50 (fifty) years after the Author
passed away. Also for creation which Copyright implemented by
publisher, the protection lasted for 50 (fifty) years since the creation
first published.

208

Matrix 24
Alteration of Act number 7 of 1987 to Act number 12 of 1997

Regarding the Right and Authority to Accuse

Alteration

Altered Material poured
Substance
Material of Article of Act No. 7/1987 in Articles Act
Rights
and Copyright provide right to foreclose number 12 of
Authority the goods announced which
to Accuse contradicted the copyright also 1997
unauthorized duplication, with ways
and paying attention on provision Copyright
stated for the foreclosure on moving
object both for the handover or for the Holder is
suing for the handover so the object
can be in his possession or to accuse entitled to
for the object to be destroyed so it
cannot be used anymore. The propose
Copyright also provide the same right
to foreclose and accuse on amounts of compensation
entry money for attending seminars,
performance, or exhibition which accusation to the
violate the Copyright.
Article 42 paragraph 1 court on

Copyright

Violation and

ask for closure

on the object

announced or the

result of the

duplications.

Article 42

paragraph 1

Source: Data processed by Saidin by comparing the Act number 7 of
1987 and the Act number 12 of 1997.

The alteration was meant to simplify the provision and to
emphasize the right of Copyright Holder to propose compensation
accusation. In that event, foreclosure as mentioned in the alteration
must be done by looking at the provision regarding foreclosure of
moving objects as regulated in Private Practical law.

As a matter of fact, the alteration regarding law enforcement
of the Copyright was included in the accusation was one thing
implicated by Article 42 the TRIPs Agreement. TRIPs Agreement was
also emphasizing in Article 43 regarding the verification on Copyright
law violation and it must be poured by the Intellectual property Right
Law of Indonesia. Because of that, TRIPs Agreement emphasized the

209

aspects regarding law enforcement and the Dispute Resolution with the
tools that must be poured by Intellectual Property Right provision
regulated in Indonesian National legislation including Copyright. Tight
law enforcement aspect was one factor that needed to be looked at by
countries that ratified the GATT 1994/WTO. Signer countries of this
convention also need to provide legal enforcement mechanism in the
private practical law. That what was implicated from article 44 TRIPs
Agreement. By that, it can be assured that the compensation accusation
and others that has been discussed by Article 42 paragraph (1) Act
number 12 of 1997 was also the thing implicated by Article 45 TRIPs
Agreement. Also, about the destruction on the objects which was the
result of Copyright violation, also implicated by Article 46 TRIPs
Agreement. Also TRIPs Agreement implicated in Article 50 for the
Court to publish temporary decree to prevent bigger disadvantages for
the Copyright Holder. All provisions in TRIPs Agreement started from
Article 42 to Article 46 and Article 50 were the provisions regarding
law enforcement of Copyright that needed to be transplanted by
National Copyright Law from TRIPs Agreement. Looking at Articles in
Act number 12 of 1997, it can be ascertained that only some of the
Articles in TRIPs Agreement regarding law enforcement that has been
transplanted. But even so, it can be ascertained that Indonesia showed
its compliance dynamic to the provision in TRIPs Agreement and also
proving that the transplant of TRIPs Agreement into the national
Copyright Law has been implemented without seeing the norms
substance in the regime of TRIPs Agreement from the school of
thought of individualism, materialism, and capitalism. If in the later day
the law enforcement of the Copyright do not go in line with the
legislation, that is not merely because Indonesian citizen don’t comply
with the law, but because the legislation did not based on the spirit and
the values adhered by the people of Indonesia.139

139 Based on the research done by Agus Sardjono, legal culture of Balinese
people differed from the legal norm meant by Intellectual Property Right Law. Legal
Culture of Balinese people based on religious and communal view whereas the regulation
of Intellectual property Right Law in Indonesia adopted the materialistic and bring
forward individual rights. Western communities see that the source in earth was
something that can be exploited whereas Indonesian traditional society see that human is
just the custodian of the source in earth. See further Agus Sardjono, Op.Cit, p. 48-49.

210

Matrix 25
Alteration of Act number 7 of 1987 to the Act number 12 of 1997

Regarding Civil Servants Investigator

Altered Material Articles Substance Material poured in
Substance Articles Act number 12 of
Act number 7 of 1997
Civil Servants
Investigator 1987 Beside the State Police
officer Investigator of
Certain Civil Indonesia, also the Civil
Servant Investigator in
Servants departments which duty and
responsibility was to develop
Investigator in the Copyright, provided with
special Authority as
Department of Investigator as stated in Act
number 8 of 1981 regarding
Justice provided Criminal Practical law to
conduct investigation of
special Authority as Criminal Act in Copyright.
Article 47 paragraph (1)
Investigator as

stated in Act number

8 of 1981 regarding

Criminal Practical

Law to conduct

investigation of the

criminal act in

Copyright.

Article 47 paragraph

(1)

Source : Data processed by Saidin by comparing between Act
number 7 of 1987 with Act number 12 of 1997.

Also regarding the provision regarding the mechanism of
criminal law enforcement was also mechanism implicated by TRIPs
Agreement even though the norms associated with that was defined
differently in national Copyright Law in each Country, but the standard
norms that must be fulfilled were regarding provisions of law
enforcement, dispute resolution mechanism and another tools related to
the compensation and the actions in cross retaliation.

The alteration regarding the authority if Civil Servant
Investigators, and the mechanism of duty implementation and the
relation with State Police officer Investigator of Republic of Indonesia,
and public prosecutor, was a provision that implemented by TRIPs
Agreement. Regarding this investigation, it’s important for the
investigators in implementing the duty. So, a confirmation than even

211

though the Civil Servant Investigator in departments which duty and
responsibility was the development in Copyright, provided with special
authority as Investigator, but it will not abolish the function of State
Police officer investigator of Indonesia as the main Investigator. In
implementing its duty, the Civil Servant Investigator was under
coordination and supervision of State Police officer Investigator of
Republic of Indonesia. In this phase the State Police officer Investigator
provide a clear clue technically regarding the shape or form and the
contain of news and also to research the material truth of the news of
investigation. After the investigation finished, the result of the
investigation is to be submitted to the Civil Servants Investigator of
Indonesia which after that is obliged to be delivered to the Public
Prosecutor. This is in line with the principle asserted in Article 6, 7 and
107 of Act number 8 of 1981 regarding Criminal Practical Law.

In this school of thought, the word “through” does not have to
be defined that the State Police Officer Investigator at the time or as
long as the Civil Servant Investigator conduct the investigation. With
that, the principle of speed and effectiveness as desired by the book of
criminal practical law really can be realized.

But in the practice of law enforcement, the Act number 12 of
1997 also not functioned as hoped. The developed countries which first
emphasize the need to aggravate the criminal threats and the need to
prepare the law enforcement mechanism turned out to feel the piracy
activity and Copyright violation was not merely can be stopped with
the perfection of the legal norms. Many reports and information proved
that after the enactment of Act number 12 of 1997, the piracy was
getting worse. Indeed in 2000, Indonesia was ever free from the
Priority Watch List of United States on Intellectual Property Right
Piracy conducted by the people of Indonesia. But in April 2001
Indonesia was back into the blacklist of Copyright piracy.

This condition then became the reason to developed countries
to push Indonesia to re-perfect the Copyright Law which only lasted for
5 years, because at last, the Act number 12 of 1997 must be revoked
and replaced by Act number 19 of 2002. The 5 years period of the
enforcement of the Act number 12 of 1998 was the period where
Indonesia has ratified TRIPs Agreement and adjusted the legislation
with TRIPs Agreement and also prepared for related instruments in law
enforcement, but the things cannot answer that the activity of Copyright
violation or piracy can be stopped or at least quantitatively be reduced.

212

F. Period of Copyright Law Number 19 of 2002 (2002 – 2014)
The experience of Indonesia from time to time in order to

protect and grow the Author’s creativity formed in National Copyright
Law was proving to have many failures. Also when Indonesia was
obliged by developed countries to adjust the national Copyright Law
with TRIPs Agreement, as the “winning result” of developed country
versus developing countries, it turned out that Indonesia which has
subjected to the Agreement to not having any result as hoped for the
protection of Copyright. Specifically on the cinematography works
realized in VCD and DVD.

The question that always questioned in every academician’s
mind which pay attention on the legal aspect of Copyright protection
was why Indonesia kept following the message of developed countries
and kept conducting adjustment of its Copyright Law with TRIPs
Agreement if this option is not giving any benefit for most society of
Indonesia. The obtained answer was very simple. This choice
conducted by Indonesia was a pragmatist choice that was for Indonesia
to not be excommunicated from global trade which expected to cause
benefit for Indonesia in a whole. This was what meant by Joseph
Margolis as pragmatism without foundations.140 Whereas the building
of the Nation of Indonesia has been put in one foundation, that is
Pancasila. 141 But the regulation of the national Copyright Law because
of the pragmatist choice, caused the foundation of Pancasila
abandoned. This is not without the development of the world that runs
today. Indonesia or the world 50 years ago is different with Indonesia
that can be seen or felt today.

One of the actual development and provided with attention in
this decade and the likelihood to still be conducted in the future was
the widespread of globalization in social, economy, culture, or anther
fields. In the field of trade, it is especially because the development of
information and transportation technology has massively grown and
made the world as a single market for all.142 By paying attention on the
truth and the likelihood like that, then it was becoming more
understandable that the claim of need for the regulation for a better

140 Joseph Margolis, Pragmatism Without Foundations, Continium
International Publishing Group, New York 2007, p. 138

141 Kaelan, Negara Kebangsaan Pancasila Kultural, Historis, Filosofis,
Yuridis dan Aktualisasinya, Paradigma, Yogyakarta, 2013.

142 See further Nanang Indra Kurniawan, Globalisasi dan Negara
Kesejahteraan: Perspektif Institusionalisme, UGM, Yogyakarta, 2009. Also see Rahayu
Kusasi, Meracik Globalisasi Melalui Secangkir Kopi, Kepik Ungu, Jakarta, 2010.

213

legal protection. Also some countries counted more on economic
activity and the trade on products resulted on intellectual ability of
human as works in the field science, art, and literary.

The General Agreement on Tariff and Trade/GATT which is a
Multilateral Agreement on Trade which basically has the goal to create
a free trade, similar behavior, and assist to create economic growth and
development to realize human welfare.143

In the matter of the multilateral agreement, on April 1994 in
Makaresh, Morocco, a package of result of the most complete GATT
ever produced had been agreed. The Discussion that has been started
since 1986 in Punta del Este, Uruguay which was known as Uruguay
Round contained Agreement regarding Trade Related Aspects of
Intellectual Property Rights/TRIPs.

TRIPs Agreement contained norms and protection standards
for human intellectual work and placed international agreement in
Intellectual Property Right as the basis.144 Besides that, the Agreement
also regulates the implementation on law enforcement in Intellectual
Property Right tightly. The messages contained in this Agreement
actually had been transplanted by Indonesia into the National Copyright
Law after Indonesia ratified the Convention regarding the formulation
of World Trade Organization which also contain the Agreement on
Trade Related Aspect of Intellectual Property Right/ TRIPs as verified
with the Act number 7 of 1994 regarding Agreement Establishing the
World Trade Organization. The Ratification on the regulation
supported Indonesia’s membership in Bern Convention for the
Protection of Literary and Artistic Works, as verified with Presidential
Decree of Indonesia number 18 of 1997 in May 7th 1997 and WIPO
Copyright Treaty which also had been verified with Presidential Decree
of Indonesia number 19 of 1997 in May 7th 1997, followed by
implementing the obligation to adjust the national legislation in the
field of Copyright to that international Agreement, so that to support
the activity of national growth, especially by focusing on many
developments and alterations, Indonesia which since 1982 has had
legislation regarding national Copyright which then perfected with Act
number 7 of 1987 and perfected again with Act number 12 of 1997,
needed to alter the Act to adjust with the standards as pointed in the
International Convention. But after the national Copyright Law of

143 See further Mohammad Hatta, Masalah Bantuan Perkembangan Ekonomi
Bagi Indonesia, Djambatan, Jakarta, 1967.

144 See further Achmad Zen Umar Purba, Intellectual Property Right Pasca
TRIPs, Alumni, Bandung, 2006.

214

Indonesia regulated based on the messages demanded by TRIPs
Agreement which poured in Act number 12 of 1997, it turned out, there
was still things which considered as not appropriate with the will of
developed countries which powered the birth of TRIPs Agreement.
Whereas if compared with the previous Acts, the Act number 12 of
1997 was far more appropriate with TRIPs Agreement. The Act
number 12 of 1997 showed the difference with the previous Acts such
as:

1. The scope of creation which provided with perfected
protection, that was the work of voice recording, was deleted
from the protected works and only provided with protection in
the rights related with Copyright. This was implemented in
order to prevent confusion as if the voice recording was
protected by Copyright and also by Related Rights with
Copyright;

2. Also the database intellectual creation was put in as one of the
creations protected as demanded by WIPO Copyrights Treaty
(WCT), where Indonesia had signed the Agreement;

3. Escalation of time period of the Copyright protection is as
long as the Author lives with addition of 70 years. This was
meant to provide a more passionate vibe for the Authors to
make creation and the Copyright protection on the Author’s
heir, which is longer, beside that to adjust with the likelihood
of international prevalent that protect it more than 50 (fifty)
years.

4. In the matter of Dispute Resolution, this Act has assigned the
settlement by Commercial Court and also another Alternative
Dispute Resolutions such as Arbitration, Mediation, etc;

5. Another thing added in this Act was the introduction of
temporary system decree of the Court as demanded in Article
50 in TRIPs, to enable further prevention of the disadvantages
of the Right Holder, and also keep the interest of party who
subject to the temporary decree of the Court in balance.

6. Another addition was the establishment of criminal threats on
violation of related rights with the Copyright, which in the
previous Copyright Law, the criminal threats only enacted
mutatis-mutandis.

7. The addition of Criminal provision of maximum fine in this
Act was meant to tackle the Copyright violation so the
effectiveness of the action can be realized.

215

8. The time limit of the process in Copyright handled by the
Commercial Court, this is to provide legal certainty and
prevent the protracted handling of and issue of Copyright
which have a very wide effect in economy and trade.

9. Addition of provision regarding information of electronic
management and technology control tool to be adjusted with
provision in WIPO Copyright Treaty (WCT)

The real job of the legislation institution is actually to create the feel of
justice, legal certainty and biggest welfare to the society, not to create
or shape the law or to give birth or produce as many Act as it can. It is
not the quantity of the legislation that become the target of the job of
legislation institution, but the quality of the born legislations. That is
also the goal that should be after in formulating Copyright Law. The
goal is of course not to fight its own nation. When the Copyright Law
number 19 of 2002 implemented repressively by maximizing the
function and role of the police as investigator, even though the
character of the delict in the legislation was placed as regular delict, not
delict on complain, but with the proactive of the police in conducting
inspection on the pirated works, a lot of pirated VCD/DVD sellers
caught and the pirated works then confiscated.

This activity is potential to “grind” the street vendors who run
this activity daily. Involved stake holders in the business based on the
works of the piracy are also plenty. Starting with the producers of the
pirated works, distributors, sellers, and the consumers. Not all of the
consumers aware that the trade of the pirated VCD/DVD is a criminal
action. What will be the fate of the children of this nation if the Act
number 19 of 2002 is really implemented, because 90% of VCDs and
DVDs circulated in Indonesian market are the result of piracy and it
also means that 90% of the consumers of VCDs and DVDs in
Indonesia were consumers who have potential to be convicted.145 This
is the Act that was born to declare war to its own nation.

If this keeps going on, there must be something wrong in the
management of this nation. This law or legislation has been amended 4
times and followed by the aggravated of the threat of criminal charges.
But that does not change the situation that the infringement or
Copyright piracy will be decreased or stopped, what will happen is
actually the contradiction, the infringement or Copyright piracy keeps
happening each day. It is increasing.

145 Ibid