Demystifying the Public Domain: Permissions and Limitations
We can almost always see this iconic portrait of Bung Tomo‘s enthusiastic speech every November 10th, as Indonesia celebrates National Heroes’ Day. In fact, according to Tempo Magazine‘s journalistic investigation, this photo was not taken on that date but later in 1947 by Frans Mendur, when Bung Tomo chaired a meeting in Malang, East Java.
As a Work, this iconic portrait was first published in 1949, together with other historical photos of the Indonesian struggle, including photographs of the Proclamation, taken by Alex Mendur, Frans Mendur, and Abdoel Wahab Saleh, in a photo album “Revolutionary Paintings” courtesy of the Indonesia Press Photo Service (IPPHOS). The first two names are the brothers who founded IPPHOS. Because the portrait of Bung Tomo in Malang is more in line with the public’s imagination about the war spirit of November 10, rather than the actual conditions, where orations were only given in radio studios, this portrait is widely used to support Heroes’ Day.
However, a portrait is still a Work that has copyright protection. Articles 1 and 9 of the Indonesian Copyright Law specifically state that a portrait is a photographic Work with human objects, and only the Creator has Economic Rights to publish, reproduce in all forms, adapt, transform, and distribute a Work. If another party wants to use it, they must obtain permission from the Creator or Copyright Holder.
What if the Creator or Copyright Holder no longer exists?
The Copyright Law regulates the validity period of Economic Rights, a reference for whether we still have to obtain permission from the Creator or Copyright Holder for a Work. If the validity period has passed, the Work has entered the Public Domain, and the public can use it freely without asking anyone for permission.
The Copyright Law in Indonesia divides the validity period of Economic Rights over Work into three different periods:
1. 25 years since the first publication;
Applies to Works of Applied Art in the form of fine art created by using art to a product so that it has an aesthetic impression to meet practical needs, including images, motifs, or ornaments on a product.
2. 25 years since the first publication;
This applies to the following three categories:
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- Photographic works; portrait; cinematographic; video games; computer program; the appearance of written work; translations, interpretations, adaptations, anthologies, databases, adaptations, arrangements, modifications, and other works resulting from transformation; translation, adaption, arrangement, transformation or modification of traditional cultural expressions; compilation of works or data, either in a format that computer programs or other media can read; and the compilation of traditional cultural expressions as long as the compilation is an original work.
- Works Made for Hire;
- Anonymous Works and Pseudonymous Works.
3. During the life of the creator and 70 years after the creator’s death;
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- Books, pamphlets, and all other written works; lectures, lectures, speeches, and other similar works; demonstration materials created for educational and scientific purposes; songs or music with or without text; drama, musical drama, dance, choreography, puppetry, and pantomime; works of fine art in all forms such as paintings, drawings, carvings, calligraphy, sculpture, statues or collages; architectural works; map; and batik artwork or other motif art.
4. Limitless Time
Applies to held Traditional Cultural Expressions by government, which includes the following six categories:
a. textual verbal, both spoken and written, in the form of prose or poetry, in various themes and message content, which can be in the form of literary works or informative narratives;
b. music, including, among other things, vocal, instrumental, or a combination thereof;
c. movement, including, among other things, dance;
d. theater, including, among other things, puppet shows and folk plays;
e. fine arts, both in two-dimensional and three-dimensional form, made from various materials such as leather, wood, bamboo, metal, stone, ceramics, paper, textiles, etc., or a combination thereof; and
f. traditional ceremonies.
From the four categories above, it can be concluded that all works, if not included in Traditional Cultural Expressions, will ultimately fall into the Public Domain. Therefore, the portrait of Bung Tomo, first published in 1949, has been in the Public Domain since 1999.
In addition, there are regulations in Article 43 (e) of the Copyright Law regarding Copyright Restrictions, which states that duplication, announcement, and/or distribution of portraits of the President, Vice President, Former President, Former Vice President, National Heroes, heads of state institutions, leaders ministries/non-ministerial government agencies, and/or regional authorities with due regard for dignity and fairness by the provisions of laws and regulations are not considered a Copyright Infringement. Since 2008, Bung Tomo has been designated as a National Hero, so the public’s use of this iconic portrait is not Copyright infringement.
However, it would be best to remember that the legal basis governing Copyright varies in each country. So, the rules that apply in Indonesia may be different from other countries.
Comparison of Public Domains Abroad
- Duration of Copyright in the United States
The Copyright Law in the United States divides the duration of Copyright as follows:
1. During the life of the creator and 70 years after the creator’s death;
The creator’s identity is known for all works created after January 1, 1978.
2. 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first;
For Anonymous Works, Pseudonymous Works, and Works Made for Hire
3. 45 years after the creation;
Works created before January 1, 1978, but expired before December 31, 2002; and, if the work is published on or before December 31, 2002
4. 28 years after the publication.
Any Posthumous Work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or any Work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such Work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such Work for the further term of 67 years.
- Duration of Copyright in the European Union
The Copyright Law in the European Union divides the duration of Copyright as follows:
1. During the life of the creator and 70 years after the creator’s death;
For every Work whose Creator’s identity is known.
2. 70 years after the creation or after the publication;
For Anonymous Works, Pseudonymous Works, and Works Made for Hire.
- Duration of Copyright in Japan
The Copyright Law in Japan divides the duration of Copyright as follows:
1. During the life of the creator and 70 years after the creator’s death;
For every Work whose Creator’s identity is known.
2. 70 years after the creation or after the publication;
For Anonymous Works and Pseudonymous Works
3. 50 years after the publication.
For Works Made for Hire.
Considering the validity period, which can be different in each country, if you want to utilize a work deemed to have fallen into the Public Domain, you need to double-check where the work comes from. Also, just so you know, what can be used without permission is only the original work, not the derivative works, compositions, or if the work has been registered as a Trademark. This misidentification can result in violating Copyright or Trademark Rights, which could result in you being subject to legal sanctions.
Should you have questions or need other information regarding Public Domain, Copyright, or other Intellectual Property, please do not hesitate to contact us via [email protected].
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