The rapid development of information and communication technology has made copyright piracy an area used by some people to profit. This makes Indonesia a haven for hijackers so that many Intellectual Property Rights holders are harmed even though supervision has been carried out on this matter.
At the end of 2019, the Ministry of Communication and Information Technology (“Kemkominfo”) blocked illegal streaming sites, including one of the largest, IndoXXI, and thousands of illegal sites and other illegal domains. Blocking of these illegal sites is not only related to copyright infringement, which harms intellectual property rights holders, but also has an impact on the spread of malware.[1]
Further, the Minister of Communication and Information Technology (“Menkominfo”) Johnny G. Plate, said that the Kemkominfo does not carelessly block illegal streaming sites. Kemkominfo collaborates with the police and the National Cyber and Crypto Agency (“BSSN”) to ensure whether the site violates the law. The eradication of illegal sites continues to be carried out because they are considered to violate the law and disturb the Indonesian economy. After all, it is very detrimental to the movie industry. According to Menkominfo, bootlegged movies on illegal streaming sites has a negative impact on investment, especially in the creative industry. The Menkominfo also ensures that the Kemkominfo will support the Indonesian’s innovation and creativity, but not piracy.[2]
Piracy that is rampant in Indonesia cannot be separated from consumer’s high demand for illegal streaming sites. Based on YouGov’s survey for the Coalition Against Piracy (“CAP”), the blocking has been done by the Kemkominfo in the last six months or around July 2019. In the survey, it was explained that almost 63 percent (out of 1,045 samples) of online consumers in Indonesia preferred to watch online content through illegal streaming sites or illegal torrent websites in order not to pay subscription fees.[3]
In the 2017-2019 period, Kemkominfo has blocked 1,745 sites that contain illegal content. In 2017, 190 contents that violated intellectual property rights were blocked by the Kemkominfo. In 2018, this number increased to 412 content. Meanwhile, in 2019, as many as 1,143 contents that violated intellectual property rights were blocked by Kemkominfo.[4]
The legal basis for the government to block illegal streaming sites is the Joint Regulation of the Minister of Law and Human Rights of the Republic of Indonesia and the Minister of Communication and Information Technology Number 14 of 2015 and Number 26 of 2015 concerning Implementation of Content Closure and/or User Access Rights Infringing Copyright and/or Related Rights in Electronic Systems, Article 13 paragraph (1) states that:
“The minister who manages government affairs in the field of communication and information technology closes internet sites or blocks or closes content and/or user access rights who violate Copyright and/or Related Rights for content either partially or completely based on the recommendations as referred to in Article 12.”
In Indonesia, copyright is regulated in Law Number 28 of 2014 concerning Copyright (“Copyright Law”). Article 1 number 1 of the Copyright Law explains that:
“Copyright means an exclusive right of the author vested automatically on the basis of declaratory principle after Works are embodied in a tangible form without reducing by virtue of restrictions in accordance with the provisions of claws and regulations.”
Author in the Copyright Law is explained as a person or several persons who individually or jointly produce unique and personal works.[5] Meanwhile, Works in Copyright Law means any scientific, artistic, and literary works that resulted from inspiration, ability, thought, imagination, dexterity, skill, or expertise expressed in a tangible form.[6]
Film is included as a Protected Works. This is stated in Article 40 paragraph (1) letter m Copyright Law:
“Protected Works which include scientific, artistic, and literary Works, comprise:
…
m. cinematographic works;
…”
The definition of “cinematographic works” means a Work in the form of moving images, including documentary films, advertising films, reportage or feature films made with a scenario, and cartoons. Cinematographic work may be made on celluloid tape, videotape, videodiscs, optical discs, and/or other media that allow for screening in cinemas, on the widescreen, television, or other media. Cinematography is an example of an audiovisual form.[7]
Apart from the Copyright Law, film specifically has its law, namely Law Number 33 of 2009 concerning Film (“Film Law”). The definition of film in the Film Law is referred to in Article 1 paragraph (1), namely:
“Film is work of cultural art which is social institution and media of mass communication made based on cinematographic principles with or without sound and can be shown.”
As a copyrighted work, film is an intellectual property and is attached to its creator. This means that a film is an intellectual property in which economic rights are attached to the creator.
Further, Article 25 of Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Electronic Information and Transactions (“ITE Law”) also states:
“Electronic Information and/or Electronic Documents that are created into intellectual works, internet sites, and intellectual works contained therein shall be protected as Intellectual Property Rights under provisions of Laws and Regulations.”
Back to the copyright issue, copyright, as regulated in the Copyright Law, consists of moral rights and economic rights.[8]
The moral rights are rights that are eternally inherent to the Author to:[9]
- continue to include or to exclude their name on the copy with respect to the public use of their Works;
- use an alias or pseudonym;
- change their Works to comply with appropriateness in society;
- change the title and subtitle of their Works; and
- defend their rights in the event of distortion of Works, mutilation of Works, modification of Works, or other acts which will be prejudicial to their honor or reputation.
While economic rights are the exclusive right of the Author or the Copyright Holder in order to gain economic benefits from the Works.[10] The Author or the Copyright Holder has the economic rights to engage in: [11]
- publication of the Works;
- Reproduction of the Works in all its forms;
- translation of the Works;
- adaptation, arrangement, or transformation of the Works;
- Distribution of the Works or their copies;
- performance of the Works;
- Publication of the Works;
- Communication of the Works; and
- rental of the Works.
Every person is prohibited from exercising Reproduction and/or Commercial Use without permission from the Author or the Copyright Holder.[12]
Furthermore, regarding the Reproduction of Works, in the Copyright Law, reproduction is described in Article 1 number 12:
“Reproduction means any process, act, or method of Reproducing one or more copies of Works and/or phonogram by any mean and in any form, permanently or temporarily.”
If reproduction is done illegally, then it is called piracy, according to the definition of piracy in Article 1 number 23 of the Copyright Law:
“Piracy means any unauthorized Reproduction of Works and/or Related Rights products and distribution of goods resulting from extensively to gain economic benefits.”
Other violations of economic rights listed in Article 9 paragraph (1) of the Copyright Law may be subject to sanctions in Article 113 of the Copyright Law, as follows:
- Every person who unlawfully infringes the economic rights as referred to in Article 9 paragraph (1) point i for Commercial Use shall be sentenced to imprisonment for up to 1 (one) year and/or a fine up to Rp100,000,000 (one hundred million rupiahs).
- Every person who unlawfully and/or without permission of the Author or the Copyright holder infringes the economic rights of the Author as referred to in Article 9 paragraph (1) point c, point d, point f, and/or the point h for Commercial Use shall be sentenced to imprisonment for up to 3 (three) years and/or fine up to Rp500,000,000.00 (five hundred million rupiahs).
- Every person who unlawfully and/or without permission of the Author or Copyright holders infringes the economic rights of the Author as referred to in Article 9 paragraph (1) point a, point b, point e, and/or point g for Commercial Use shall be sentenced to imprisonment for up to 4 (four) years and/or fine up to Rp1,000,000,000.00 (one billion rupiahs).
- Every person fulfilling the elements, as referred to in paragraph (3) by committing piracy, shall be sentenced to imprisonment for up to 10 (ten) years and/or fine up to Rp4,000,000,000.00 (four billion rupiahs).
Aside from the Copyright Law, sanctions are also contained in Article 80 of the Film Law:
“Anyone who purposely distributes, sells, rents, or shows to the public, a film without passing the censorship, even though it is known or reasonably suspected that its contents violate the provisions referred to in Article 6 shall be punished with imprisonment of up to 2 (two) years or a maximum fine of Rp10.000,000,000.00 (ten billion rupiahs).”
The Copyright Law, together with the Film Law and the ITE Law, clearly regulates the rights belonged to the creators, but in reality, the enactment and application of this law are still not in line with what was expected. The main factor is the public itself. The high demand and many people do not know and realize the importance of copyright. The public factor is related to legal awareness in society. The public has a significant impact so that law enforcement can run well.
Quoted from tirto.id, Former Vice President Jusuf Kalla once said, “Watching at the cinema is expensive, that’s why many Indonesians choose to buy illegally.” Indeed, piracy, especially in films, is still a polemic that cannot be resolved completely. Because it cannot be denied that Jusuf Kalla’s words are quite realistic and reasonable, shutting down illegal streaming sites will be a painstaking job in vain. Policymakers – of course, including the vice president – and industry people must make a strategy s this problem can be resolved to the root.[13]
Hope it is useful,
FREDRIK J
PINAKUNARY LAW OFFICES
[1] Berikut Alasan Kominfo Blokir Situs IndoXXI, https://www.kompas.com/tren/read/2019/12/22/155000065/berikut-alasan-kominfo-blokir-situs-indoxxi?page=all, accessed on 23 June 2020
[2] Rusak Iklim Investasi, Alasan Menkominfo Blokir Situs IndoXXI Cs, https://money.kompas.com/read/2019/12/24/124000826/rusak-iklim-investasi-alasan-menkominfo-blokir-situs-indoxxi-cs?page=all, accessed on 23 June 020
[3] Ibid, accessed on 23 June 2020
[4] Kemenkominfo Blokir 1.745 Situs Konten Bajakan, Good Job!, https://www.wartaekonomi.co.id/read265948/kemenkominfo-blokir-1745-situs-konten-bajakan-good-job, accessed on 23 June 2020
[5] Article 1 paragraph 2 Copyright Law
[6] Article 1 paragraph 3 Copyright Law
[7] Elucidation Article 40 paragraph (1) letter m Copyright Law
[8] Article 4 Copyright Law
[9] Article 5 paragraph (1) Copyright Law
[10] Article 8 Copyright Law
[11] Article 9 paragraph (1) Copyright Law
[12] Article 9 paragraph (3) Copyright Law
[13] Situs Pembajak Film, Patah Tumbuh Hilang Berganti, https://tirto.id/situs-pembajak-film-patah-tumbuh-hilang-berganti-GsS, accessed on 24 June 2020
