ASEAN special report: Tackling piracy head on

Copyright owners can enforce their rights against online infringement with the assistance of officials at Indonesia’s Ministry of Law and Human Rights (MoLHR) and Ministry of Communication and Informatics (MoCI).

Before the issuance of Law No. 28 of 2014 on Copyright (Copyright Law), right owners relied on general provisions concerning unauthorised reproduction and publication of copyrighted works on the internet, and many times the measures taken were not effective. In practice, sending cease-and-desist letters to the parties involved in the infringing activities or notifying the relevant internet service providers about those acts could work on a case-by-case basis, depending on how the relevant parties want to cooperate to solve the problem.

On July 2, a joint regulation was issued by the MoLHR (No. 14 of 2015) and MoCI (No. 26 of 2015) on the Implementation of Takedown of Contents and/or of Removal of Users’ Rights to Access Copyright and/or Neighboring Rights Infringement in Electronic Systems.

The purpose of this regulation is to implement measures accommodated in article 56, paragraph (2) of the Copyright Law, which requires both the MoLHR and the MoCI to coordinate in shutting down electronic systems that disseminate copyright-infringing contents or removing such infringing contents. The regulation will provide avenues for copyright owners to take actions against online infringement.

According to the regulation, anyone who is aware of any copyright/neighbouring rights infringement may lodge a complaint to the MoLHR. The complainant could be (i) the author of the works being infringed; (ii) the copyright owner; (iii) a neighbouring right owner (eg, performers, broadcasting organisations and sound recording producers); (iv) a licensee; (v) local collecting societies; (vi) authorised associations; or (vii) other authorised parties.

According to the regulation, a complainant may submit a complaint to the Directorate General of Intellectual Property (DGIP), which is part of the MoLHR, by filing it directly to the office or via the website.

The complaint should also include the following information/documents: (i) identity of the complainant; (ii) proof of ownership of the work; (iii) website address where the infringing contents are made available; (iv) type and/or name of the content which is being infringed; (v) other information related to the work being infringed; and (vi) power of attorney (if the complaint is being lodged by an attorney).

Course of action

The following are the steps to take down the infringing content:

The MoLHR verifies the complaint;

If the MoLHR finds sufficient evidence of infringement, it sends its recommendation to the MoCI;

After the MoCI gets the recommendation from the MoLHR, the MoCI partly or wholly removes the content and/or removes the access rights. The MoCI will also announce this removal of the content on its official website; and

If the contents are entirely removed, a court judgment will be needed.

The owner of the content and/or the access right of the content may file a request to the MoLHR through the DGIP to reopen the content and/or the access rights. The DGIP will assess the request and may issue a recommendation to the MoCI to re-open the content/access right that has been closed.

Several local news sources reported that in the short term, this action will be mainly focused on stopping unauthorised streaming and downloading of movies (or other cinematographic works) and songs (or other sound recording works), and so far it has been implemented against several local websites in Indonesia.

It remains to be seen if this will be consistently implemented in practice, but this new joint regulation is considered a promising new initiative from the government in the effort to tackle copyright infringement on the internet in Indonesia. Copyright owners should start using this measure when considering taking action against online infringement.

Daru Lukiantono is a partner at  Hadiputranto, Hadinoto & Partners. He can be contacted at: daru.lukiantono@bakernet.com

Wiku Anindito is an associate at Hadiputranto, Hadinoto & Partners. He can be contacted at: wiku.anindito@bakernet.com