Supervision of government

A study of five key aspects of Indonesia’s legal system has concluded that a lack of adequate supervisory mechanisms is to blame for the perceived absence of rule of law.

The Indonesian Legal Roundtable’s Indonesian Rule of Law Index 2013 (Indeks Negara Hukum Indonesia 2013) was launched in Jakarta on 19 September 2014.  According to a Jakarta Post article, the study reviewed lawmaking, implementation of the law, independence of the judiciary, access to justice and the protection of human rights.  The study was conducted by interviewing 193 experts (including lawyers and academics) and reviewing documents.  One key finding was that the rule of law is not observed in Indonesia.  And that inadequate supervision of all three branches of government - the executive, legislature and judiciary - is to blame.

The rule of law is espoused in Indonesia’s Constitution (article 1(3) of the Constitution 1945).  But this is not the first time Indonesia’s legal system has been criticised for its absence (see, for example, our post on the World Justice Project Rule of Law Index Report 2014 here).  And while the ILR study calls for more supervision, the Judicial Commission’s budget was recently cut by some 27% (see our post here).

With the incoming Jokowi administration scheduled to take office on 20 October, we will soon see whether a change of government will see the introduction of new measures to buck this trend.

Gazettes controversy

The omission of representative images from official Trademark Gazettes has been causing controversy in Indonesia.

Under the current Trademark Law (No. 15 of 2001), applications that have passed substantive examination are published for opposition purposes.  The marks appear in Trademark Gazettes that are published periodically by the Directorate-General of Intellectual Property.  The purpose of publishing the marks is to give any interested third parties a chance to examine the applications as filed, and (if desired) file an opposition within the prescribed three month period.

Below is an extract of a page from a recent Trademark Gazette.  On this page appear both word (plain letter) trademarks, device (logo) trademarks, and mixed word and device marks.

Below is another extract of a page from the same Trademark Gazette, this time featuring some of the controversial publications.

All the published trademarks appear to be word marks, but on closer examination they all start with the word “lukisan” which in context means ‘logo’.  Some enquiries at the Trademark Office reveal that if scanned images of trademarks have not yet been uploaded to the Trademark Office database when it comes time to publish the Trademark Gazettes, this is how these device marks will be published.

What follows is a debate over the consequences of not properly publishing representative images of the applications.  In the circumstances, it can be argued that interested third parties have not been given a proper opportunity to examine and oppose the marks.  Potentially, each of the trademarks could be the subject of Administrative Court proceedings - claiming the marks were not properly processed by the Trademark Office.

Trademark Office gazettes with the problematic publications can be downloaded from the DGIP website here.

New Copyright Law

The House of Representatives has approved a new Copyright Law, which introduces fundamental changes to the landscape for IP protection in Indonesia.

A new Copyright Law was approved by the House of Representatives on 16 September 2014.  The existing Copyright Law (Law No. 19 of 2002) will be replaced after formalities are completed and the President signs off.  There is no prescribed timeframe, but we might see this attended to before current President Susilo Bambang Yudhoyono’s term expires on 20 October 2014 (see our post here).

The new law is a game-changer for enforcement.  The introduction of landord liability means that building management will be committing a crime if they knowingly allow tenants to carry on with infringing activity on their premises.  A fine of IDR100million (around USD12,000) is applied.  Rights holders now have an additional target to pursue, and landlords will need to become more proactive in monitoring their tenants.

At some point between the last draft version that was circulated and the version that was passed, lawmakers dropped some of the harsher provisions of the law.  The draft included a term of imprisonment of 2 years with the landlord liability clause - and it's not here in the version passed this week.  Absent too is the provision introducing criminal penalties for buying certain works (books, musical and cinematographic works) - this would have represented a fundamental shift in Indonesia's approach to copyright protection, being the first time consumers of pirated products could have been found guilty of a crime.   We commented on the draft Copyright Law here.

The new Copyright Law also sees terms of copyright protection extended (e.g. 70 years from death of author, compared with the current 50), and revisions to provisions and definitions that serve to broaden the scope of copyright protection in Indonesia.

The story is featuring in local media, including Hukum Online (see here), Kompas (see here) and Detik (see here).  We commented on a draft version of the law here.

(the House of Representatives building, from Hukum Online)

New trademark law

A new trademark law, which has been in circulation in draft form for some time, looks like it will be debated (and hopefully passed!) next year.

Although the House of Representatives has not historically prioritised intellectual property legislation, the Trademark Law is likely to be addressed next year as Indonesia prepares to join the Madrid Protocol (see our post here) and the ASEAN Economic Community.

In its latest form, the proposed new trademark law incorporates significant changes, including:

• new examination procedure - no substantive examination before publication for opposition purposes;
• recognition of some non-traditional marks - 3D marks, sounds, scent, and holograms;
• accommodation for electronic filing of applications for registration;
• renewal period shifted to 6 months before and after expiry (currently 12 months before);
• accommodation for Madrid Protocol applications (will need supporting regulations); and
• increased criminal penalties (up to IDR2.5billion).

Some of these changes are clearly designed to help the Trademark Office clear examination backlog, and to anticipate an expected increase in the number of applications that will be filed when the Madrid Protocol is introduced.

When the new law comes into force, all pending applications will be subject to the new law with immediate effect.

IP report card for the SBY administration

As Indonesia’s outgoing President Susilo Bambang Yudhoyono (SBY) prepares to leave office, it’s a good time to reflect on what his administration has done for intellectual property in Indonesia.

The Jakarta Post quotes SBY claiming he has made progress on corruption (see here).  We have certainly seen increased levels of activity from the Corruption Eradication Commission (see our post here).  There were a few notable corruption scandals, including recently the case of the Chief Justice of the Constitution Court (see our post here) and General Moeldoko’s watch (see our post here), and corruption is without a doubt still one of Indonesia’s biggest problems.  But it is fair to say that significant progress has been made (see our latest comments here) and that the trend is moving in the right direction.

The same Jakarta Post article quotes SBY commenting on Indonesia’s solid economic performance.  Statistics presented include average economic growth of 5.9 percent during the period of 2009 to 2013, and that in the G20 Indonesia has the second highest growth after China.  This is impressive, particularly in the context of global financial woes.  Solid economic performance will ensure that businesses (foreign and local) continue to be interested in investing in Indonesia, and with this we are seeing development of IP and IP infrastructure.

Two important regulations were passed by the Supreme Court - on obtaining interim injunctions in Court and Customs proceedings.  We also have two key pieces of legislation ready to be debated (but not yet passed!) - a new Copyright Law which could be passed this year, and a new Trademark Law which could be passed in 2015.  But we are still waiting for numerous regulations, for example on well-known trademarks and recordal of licenses.  And we still don’t have a Customs recordal system.  There have been so many opportunities to advance the legal infrastructure and we have been left wanting - despite that in the final years of the administration the Minister of Law came from an IP Law firm.  Until intellectual property becomes a domestic priority it is unlikely to be addressed before what are regarded as more pressing issues.

President-elect Joko Widodo is due to assume office on 20 October 2014, and has not yet announced who his Minister of Law will be.  Hukum Online reports that the profession is advocating for the appointment of another lawyer (see here), arguing that an academic would not function well in the world of politics and a non-lawyer would not understand the portfolio.  It would seem that there is someone specific in mind!

Defaming a city

Indonesia’s defamation laws are again in the spotlight, as local media follows the story of a student who has allegedly defamed the city of Yogyakarta.

According to a Jakarta Post article (see here), a joint criminal complaint was filed by NGOs and community groups against Florence Sihombing, a 26 year-old law student.  Florence has been detained by police, so far for two days, while the matter is investigated.  According to an ABC article (see here), in a post on social media platform Path, Florence said that the city of Yogyakarta was "poor, stupid and uneducated” and advised her friends in Jakarta and Bandung not to live there.  It apparently all started when Florence tried to jump a queue for petrol - videos of the incident have been posted on YouTube, as have numerous angry reactions.

We’ve written about defamation before (see here, for example).  Defamation is a criminal offence in Indonesia, and also gives rise to a civil cause of action.

Residents of Yogyakarta are obviously upset by the comments and authorities will need to deal with the situation.  From a legal perspective the case exposes the shortcomings of Indonesia’s defamation laws - that Florence can be charged with a criminal offence for making these comments, and detained while the matter is investigated, reveals how powerful a tool these laws can be.  It also exposes the potential for abuse.  Consider that in Indonesia Directors are personally liable for the criminal acts of a corporation

It is vitally important to avoid making any statements on record that could be regarded as defamatory,  as this will give rise to a defamation claim.  This extends to accusations of infringement of intellectual property, particularly where there isn't strong evidence to support the claim.

(Florence Sihombing, image from ABC)

Batik and patents

An organisation tasked with protecting and cataloguing Indonesia’s batik designs - the Indonesia Ethnic Designers Forum (Fodei) - was formed in Jakarta last month.

According to a Jakarta Globe article (see here), Fodei will arrange seminars on the philosophies behind traditional batik motifs, and will "catalogue the country’s ethnic patterns and patent them”.  Ignoring the unfortunate reference to patent rights (mistaken references to patent rights have, ironically enough, been been complained about in the Jakarta Globe before - see here), if Fodei is able to promote registration of copyright in new designs and the cataloguing of traditional designs, this will serve to strengthen Indonesia’s claims over batik.

Batik has been identified as a piece of Indonesia’s intangible cultural heritage by the United Nations Educational Scientific and Cultural Organization, but is periodically the subject of disputes with Malaysia which also claims batik as part of its cultural heritage (see here, for example).

(Nidya and Andy wearing batik)

Indonesia–Japan Pre Ip Forum

The Directorate-General of Intellectual Property (DGIP) and the Japan External Trade Organisation (JETRO) hosted a discussion forum last week (27 August) titled the Indonesia-Japan Pre IP Forum.  The event was attended by our Nidya Kalangie.

According to the DGIP blog, the forum was one of a series of discussions to promote bilateral relations between Indonesia and Japan in the field of intellectual property.  Last week’s event was attended by representatives of the Japan Patent Office (JPO), Japan International Cooperation Agency (JICA), and JETRO.  A memorandum of understanding was signed, which included the secondment of two JPO officers to the DGIP.

Japan has been helping the DGIP improve its infrastructure and technical abilities for some years now.  JICA, for example, has been offering officers on secondment.  Contributing to the improvement of technical expertise at the DGIP, and to improvements in infrastructure such as databases, ultimately benefits both foreign and domestic IP proprietors.