Copyright is one of Intellectual property rights or internationally known as Intellectual Property Right (“IPR”), which include science, art, and literature. Every work in copyright has value and raises the concept of economic benefits and wealth, therefore it has a strategic role in building the national economic growth and advancing general welfare as mandated in the fourth paragraph of the Preamble to the 1945 Constitution of Republic Indonesia. Hence, the Country has provide legal protection to everything which created by the results of thinking and human intellectual ability through Law Number 28 of 2014 concerning Copyright (“Law 28/2014”).
Based on Article 1 Number 1 of Law 28/2014, copyright means an exclusive right of the author vested automatically on the basis of declaratory principle after a creation is embodied in a real form without reducing the restrictions in accordance with the provisions of laws and regulations. Shall we take a look from the definition of copyright, there is a phrase “Declarative Principle” meaning the copyright protection will be automatically attached to the author after the idea of a work embodied in a real form. In other words, the author is not obliged to register their creation to the authorized institution (in this case, Directorate General of Intellectual Property). This is what makes the characteristic of copyright different from other fields in IPR.
It is impossible for the copyright to be created by itself. The result of intellectual work which has potency to have high material and economic value are not separated from the author’s intellectual work. Referring to Article 1 Number 2 Law 28/2014, Creator means a person or several people who individually or jointly produce works that are unique and personal. In accordance to the definition, as a subject of copyright, the creator in producing the intellectual works may be a person or several people. If the creator produce a work individually, therefore the name which will be listed is the creator’s name. But if the creators which consist of several people jointly produce an intellectual work, the name which will be listed as the creators are the names of the people involved in the production of the work and become joint property. Therefore, the creator is a fundamental element in copyright, because the creator is the one who produces the intellectual work and expresses the work in a real form which may be seen and/or heard and/or felt. To simplify, if there is no creator, then it is certain that no intellectual work will be produced either.
Aside from the Creators, there are also Copyright Holders who may own the copyrights. According to Article 1 Number 4 Law 28/2014, copyright holder means an Author as the copyright owner, the party acquiring a lawful right from the creator, or other parties who acquire subsequent rights from the party such acquiring lawful rights.
On the other hand, the definition of “Creation” based on Article 1 Number 3 Law 28/2014 means any scientific, artistic, and literary works resulted from inspiration, ability, thought, imagination, dexterity, skill or expertise expressed in a real form. The creation which is not or has not been expressed in a real form or is still only an idea, is not protected by Law 28/2014. The work which will be protected by Law 28/2014, is a work that has been expressed in a real form, not only an idea. For the example, the embodiment of an idea to becomes a work is when the idea must be in a written form or other material form, such as a work of song that has been written in a musical composition, or recorded through recorder in any form, in analougue or in digital.
Law 28/2014 protected works include the work in science field, art, and literature as regulated on Article 40 paragraph (1) Law 28/2014 which consists:
- books, pamphlets, typholographical arrangement of published written work, and all other written works;
- talks, lectures, speeches, and other similar works;
- visual aids made for educational and scientific purposes;
- songs and/or music with or without lyrics;
- dramatic works, musical dramas, dances, choreography, puppet shows, pantomimes;
- fine art works in any forms such as paintings, drawings, engravings, calligraphy, carvings, sculptures, or collage;
- applied art works;
- architectural works;
- batik art works or other patterns art;
- photographic works;
- cinematographic works;
- translations, interpretations, alterations, anthologies, databases, adaptation, arrangement, modification and other works resulting from transformation;
- translation, adaptation, arrangement, transformation, or modification of traditional cultural expressions;
- compilation of works or data, whether in a readable format by Computer Program or by other media;
- compilation of traditional cultural expressions as long as the compilation constitutes an original work;
- video games; and
- computer programs.
Furthermore, copyrights are exclusive rights consist of moral rights and economic rights as mentioned on Article 4 Law 28/2014. The moral rights are the rights that inherent to the author which cannot be erased for any reasons, even though the copyrights has been trasferred to another party. For example, to keep the author’s name on a song even though the song has been sung by different singers, such as song cover and rearrange a song. Whilst, the economic rights are the author’s exclusive rights to obtain the economic benefits from the work such as publication, duplication, translation, adaptation, arrangement, distribution, performance and announcement. In conclusion, in every peole whom may exploit and perform the economic rights must obtain the permission first from the author or the copyright holder. It is signify that the moral rights are still attached substantially only to the author and are still prevail despite the economic rights which inherent by the author or the copyright holder of the works has been transferred or switched to another party.
This Article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at firstname.lastname@example.org.
Author: Galang Prianggara N.A., S.H.