The Legal Risks of Selling (Unauthorized) T-Shirts with Popular Character Images - AFFA IPR

The Legal Risks of Selling (Unauthorized) T-Shirts with Popular Character Images

Intellectual Property, Copyright1 Comment

We can still easily find t-shirts with popular character images in small stores, shopping centers, exhibitions, and e-commerce in Indonesia. For those of you who are fans of popular culture from within and outside the country, the presence of t-shirts with characters that you like, sometimes with attractive designs, and also at low prices, is very tempting to buy.   But what if these t-shirts are not licensed or use the images without permission? Are there any legal consequences for the buyer? Here is the discussion from the Intellectual Property law perspective that applies in Indonesia.   Legal Standing   Article 40 of Law Number 28 of 2014 (Copyright Law) has recognized that works of fine art in all forms, such as paintings, drawings, carvings, calligraphy, sculptures, statues, or collages, photographic works, to cinematographic works that are closely related to popular culture, are protected creations. Therefore, the state guarantees that Exclusive Rights consisting of Moral Rights and Economic Rights are given only to the Work’s Creator, Copyright Holder, and/or Related Rights Owner.   This Copyright Law also covers all works or Creations and/or Related Rights products and users of Creations and/or Related Rights products from Indonesian Citizens and non-Indonesian citizens, non-Indonesian residents, or those who are not Indonesian legal entities, with the following provisions: Their country has a bilateral agreement with the Republic of Indonesia regarding the protection of Copyright and Related Rights; or Their country and the Republic of Indonesia are parties or participants in the same multilateral agreement regarding Copyright and Related Rights protection.   The point is that it is inevitable that all works born from popular culture originating from abroad will be recognized as copyrighted in Indonesia. Therefore, all activities of utilization, duplication, distribution, and commercialization must have the permission of the Creator, Copyright Holder, and/or Related Rights Owner. Otherwise, it will be categorized as piracy!   This piracy is regulated explicitly in Article 1 of the Copyright Law, where it is clear that what is meant by Piracy is the unauthorized duplication of Creations and/or Related Rights products and the widespread distribution of the resulting duplication goods to obtain economic benefits.   Penalties for Piracy   Article 113 Paragraph (4) of the Copyright Law states explicitly that “Any person who fulfills the elements as referred to in paragraph (3), which is carried out in the form of piracy, shall be punished with imprisonment for a maximum of 10 (ten) years and/or a maximum fine of Rp. 4,000,000,000.00 (four billion rupiah).”   Terrible sanctions, right? Unfortunately, this criminal threat has not been appropriately socialized because many still do not understand the term piracy. There is even a glorification for successful SMEs by commercializing the use of characters protected by copyright without permission. Finally, this Piracy activity continues rampant without understanding its negative impacts. In fact, Copyright is important to protect.   You might also want to read: Media Missteps: 5 Intellectual Property Blunders to Avoid   5 Reasons Why Copyright is Important Copyright protection is an important part of the legal system that supports economic justice and innovation, with the following details:   Respecting Creators: Protecting copyright ensures that creators of works receive proper recognition and compensation for their work. This provides an incentive to continue innovating and creating. Encouraging Creativity: With copyright protection, individuals and companies are more likely to invest time and resources in creating new works because they can expect a return. Regulating the Use of Works: Copyright gives owners control over how their work is used, shared, or modified, helping to prevent misuse or unauthorized use. Economic Growth: Copyright supports the creative industry, significantly contributing to economic growth through job creation and tax revenue. Consumer Protection: It helps ensure that consumers get original, high-quality products, not imitations or pirated goods.   Therefore, if piracy occurs, all of the above points will be disrupted, from a low appreciation for creators, stagnant creativity, weak distribution supervision, and low product quality to worsening Indonesia’s ranking in the International Intellectual Property Index.   Your Contribution is Needed   If you have already bought a pirated t-shirt, you don’t need to worry about legal sanctions. Because in Indonesia, criminal sanctions are mainly aimed at those who produce, distribute, or sell pirated goods, not at buyers. The Indonesian Copyright Law focuses on parties who actively violate Copyright by reproducing, producing, or distributing works without the permission of the Copyright Holder.   However, although buyers of pirated goods are generally not faced with criminal sanctions, buying pirated goods is unethical because it supports an illegal industry that harms the original Creators and the creative industry. Buying pirated goods can also harm consumers because the goods often do not meet quality and safety standards.   You must realize that choosing legitimate and licensed products is the best way to support Creators and ensure that the products received are safe and of good quality. In addition, buying original products contributes to healthy economic growth and innovation for society.   You might also want to read: Intellectual Property Infringements in Indonesia: A Closer Look at Online Hypocrisy Should you need further information regarding Copyright protection in Indonesia, you can contact us via email: [email protected].

The Indonesian Constitutional Court Ruled Article 10 of the Copyright Law Unconstitutional - AFFA IPR

The Indonesian Constitutional Court Ruled Article 10 of the Copyright Law Unconstitutional

Intellectual Property, Copyright

On February 29, 2024, the Constitutional Court of the Republic of Indonesia (MKRI) decided case Number 84/PUU-XXI/2023 concerning Material Review of Law Number 28 of 2014 concerning Copyright (Copyright Law) and declared Article 10 of the Copyright Law to be contrary to the 1945 State Constitution of the Republic of Indonesia (Constitution of Indonesia). How is this possible?   This case began when PT Aquarius Pustaka Musik, PT Aquarius Musikindo, and songwriter Melly Goeslaw (hereinafter referred to as the Petitioner) discovered that songs created and/or owned Copyright were being used by a User Generated Content (UGC)-based digital service platform. In early 2020, the Petitioner even filed a civil lawsuit against Bigo Technology Ltd. as the digital service platform ‘Likee’ manager to the Central Jakarta District Court’s Commercial Court for using songs whose Copyright is under his auspices without permission. Unfortunately, the panel of judges rejected the lawsuit because the videos shown were UCG-based, i.e., originated, created, and uploaded by application users, not by Bigo. Thus, Bigo cannot be held responsible.   The Indonesian Copyright Law Does Not Yet Regulate UGC   The rejected lawsuit to Bigo and Likee could occur because there is a vacuum in the Copyright law used for UGC-based platforms. Hence, the platform manager ignores and deliberately hides behind the Circular Letter of the Ministry of Communications and Informatics Number 5 of 2016, Chapter V-C Provisions Number 2(b), which states that the UGC Platform is not responsible for goods and/or services containing content that violates Intellectual Property Rights if it can be proven that there was an error and/or negligence on the part of the merchant or Platform user.   In fact, in Article 28-C and 28-D paragraph (1) of the Constitution of Indonesia, the state guarantees its citizens to benefit from science and technology and the arts to improve the quality of life and for the welfare of humanity, as well as to obtain fair legal certainty. Thus, the Human Rights of the Petitioners must be protected, promoted, upheld, and fulfilled by the State, in this case, the government as mandated in Article 28-I paragraph (4) which explicitly states that “Protection, promotion, enforcement and fulfillment of rights Human rights are the responsibility of the state, especially the government.”   One of the methods that the state must take in protecting and upholding the fundamental rights of the Petitioners is by establishing laws and regulations that can substantively and procedurally guarantee and ensure the implementation of these rights by the instructions of Article 28-I paragraph (5) the Constitution of Indonesia. Therefore, on the one hand, the State must create a legal norm or rule with a precise, firm formulation, without multiple interpretations, and includes or encompasses matters aimed at realizing these fundamental rights. On the other hand, the Petitioners are entitled to the certainty of the quo regulations. This is inevitable for its continuity in a rule-of-law state as required in Article 1 paragraph (3) of the Constitution of Indonesia, which states, “The state of Indonesia is a state of law.”   As stated in Indonesian Copyright Law:   Article 10 Managers of business premises are prohibited from allowing the sale and/or reproduction of goods resulted from Copyrights and/or Related Rights infringements in the location under their management.  Article 114 Every Person managing business premises in all its forms who deliberately and knowingly allows the sale and/or duplication of goods resulting from infringement of Copyright and/or Related Rights in the premises that they manage as referred to in Article 10 shall be sentenced with a maximum fine of Rp100,000,000.00 (one hundred million rupiahs). Because Articles 10 and 114 of the Copyright Law are deemed not to include protection for UGC and the state is obliged to provide legal certainty, the Petitioner also submitted a Material Review of the Copyright Law to the Constitutional Court on July 30, 2023, based on the Petitioner’s Petition Submission Deed Number 83/PUU/PAN.MK/AP3/07/2023 was recorded in the Constitutional Case Registration Book on August 3, 2023, with Number 84/PUUXXI/2023, corrected and accepted by the Registrar of the Court on September 8, 2023.   Final Verdict in Favor of the Creator Until then, the Constitutional Court’s decision stated that it had granted the Petitioners’ petition in its entirety and stated that Article 10 of the Copyright Law was contrary to the Constitution of Indonesia and did not have conditionally binding legal force as long as it was not interpreted as “Manager of trading places and/or Digital Service Platforms based on User Generated Content (UGC) is prohibited from allowing the sale, display and/or duplication of goods resulting from violations of Copyright and/or Related Rights on trading venues and/or digital services that it manages.”   In particular, the Constitutional Court stated that the Petitioners’ human rights, as outlined in the Constitution of Indonesia, were impaired due to the enactment of Article 10 and Article 114 of the Copyright Law, considering that the content of the two articles being reviewed did not or did not protect fair legal certainty, because the content was inadequate and too narrow so that it cannot reach/keep up with new phenomena that have emerged as a logical consequence of technological growth and development, where one of the consequences of technological progress, especially in the information sector, has been the violation of the constitutional rights of the Petitioners. Still, the perpetrators will easily avoid legal responsibility because the formulation of the article cannot be used as a basis for prosecuting perpetrators who violate the law.   Furthermore, the Constitutional Court stated that the material content of Article 10 and Article 114 of the Copyright Law is normatively very limited and narrow because it only emphasizes the Management of Trading Places, which are a venue for selling and/or duplicating goods resulting from violations of Copyright and/or Related Rights, despite their speed and sophistication. Information technology has created an extensive space for interaction or mass communication (between people or society) through the provision of digital service platforms, namely in the form of sharing-app, short-video creation…

The Management of Royalties for Secondary Use Licenses for the Copyright of Books and/or other Written Works in Indonesia - A Closer Look at the Minister of Law and Human Rights Regulation Number 15 of 2024 - AFFA IPR

The Management of Royalties for Secondary Use Licenses for the Copyright of Books and/or other Written Works in Indonesia – A Closer Look at the Minister of Law and Human Rights Regulation Number 15 of 2024

Intellectual Property, Copyright

The Minister of Law and Human Rights of the Republic of Indonesia, Yasonna Laoly, has officially ratified the Minister of Law and Human Rights Regulation (Permenkumham) Number 15 of 2024 concerning Management of Royalties for Secondary Use Licenses for the Copyright of Books and/or Other Written Works.   What is meant by Secondary Use for Book Copyright and/or other Written Works are all activities as follows: printing; photocopy; scanning; screenshot; internet downloading; emailing; posting/uploading; storing; sharing; read aloud in a form of video and/or audio; live performing; or web scraping.   This regulation, published on June 12, 2024, is expected to increase income for book creators and publishers in Indonesia. It also regulates who receives, pays, and distributes royalties for books and other written works.   More specifically, this Regulation describes the following provisions: Royalty Recipient Creator of books and/or other written works who has become a member of the Collective Management Organization (LMK) in the field of books and/or other written works. Royalty Payer Secondary Users include: education units; colleges; educational institutions; research institutions; ministries/institutions/regional governments; private businesses that carry out document duplication activities; photocopying service business; electronic system administrator; broadcasting institutions; artificial intelligence (AI) developer; other Secondary Users in accordance with statutory provisions. Imposition of Royalties The amount of Royalty for Secondary Use of Book Creations and/or Other Written Works is determined by LMK in the field of Books and/or Other Written Works, the amount of which is stated in a mutual agreement stipulated in a written agreement between LMK and Secondary Users, and ratified by the Minister.   Secondary Use rates for educational units, universities, educational institutions, and micro and small businesses can be adjusted by submitting an application letter to LMK with supporting evidence. Royalty Distribution Royalties that LMK has withdrawn will be collected and distributed only to Creators of books and/or other written works who have become members of the LMK, and this is done at least 1 (one) time in 1 (one) year. The Indonesian Publishers Association (IKAPI) acts as LMK Currently, IKAPI has been designated as the first LMK in this field, and a supervisory team formed by the Minister of Law and Human Rights will monitor its performance and finances. Requirements to Become an LMK The Ministry of Law and Human Rights is still accepting applications for operational permits as LMK in the field of Books and/or other Written Works with the following requirements: in the form of a non-profit Indonesian legal entity; obtain authority from the Creator and/or Copyright Holder to collect, gather, and distribute Royalties; have authorized persons as members of at least 200 (two hundred) people who represent the interests of the Creator and/or Copyright Holder; aims to collect, gather, and distribute Royalties; able to collect, gather, and distribute Royalties to Creators and/or Copyright Holders; member of the LMK federation organization in the field of books and/or other written works of international reproduction; And have bilateral/reciprocal agreements with LMK in the field of Books and/or other similar written works in at least 5 (five) countries, government of a country’s particular administrative region and/or certain entities.   With the existence of Minister of Law and Human Rights Regulation Number 15 of 2024, it is hoped that the welfare of authors of books and/or other written works can increase, as well as encouraging the spirit of creativity and the creation of quality works in Indonesia.   Should you have further questions regarding Royalty Management for Secondary Use Licenses for Book Copyrights and/or Other Written Works in Indonesia, please do not hesitate to email us at [email protected].   Source: Directorate General Intellectual Property

Indonesia's Copyright Dilemma: When Good Intentions Pave the Way to (Unintended) Infringement - AFFA IPR

Indonesia’s Copyright Dilemma: When Good Intentions Pave the Way to (Unintended) Infringement

Copyright1 Comment

Viral on Social Media about how the family of the late proclaimer of the Republic of Indonesia, Bung Hatta, objected to his speeches, which had been released in book form, being digitized and distributed free to the public by a public official for educational reasons and not for commercial purposes. Why might the family raise objections? Were any laws violated?   Suppose you have several classic books published before 1960, which contain a collection of speeches by Bung Hatta (who died on March 14, 1980), and you have done research that the publisher is no longer there. Then, it doesn’t mean you can transform the creation; in this case, make a digital version and share it for free without permission from the heirs.   Article 40 of the Copyright Law recognizes a book and a lecture/speech as protected works. Most of these books contain Bung Hatta’s speeches, not as the first Vice President of the Republic of Indonesia but as a person who gave speeches on various occasions. So, the assumption that the speech is not protected by Copyright falls.   Specifically, the Copyright Law regulates Moral and Economic Rights, which are creators’ Exclusive Rights. In this case, Bung Hatta gets Moral Rights without time limits and Economic Rights for up to 70 years after his death. If we calculate that Bung Hatta died in 1980, his Economic Rights will still be valid for 70 years starting January 1 of the following year (1981) and will only end in December 2050.   Sanctions for Transformation & Distribution of Works Without Permission   Transforming activities are considered a different Copyright violation than the distribution of works. So parties who create a digital version of a book and share the link without permission can be subject to two articles at once, namely the Copyright Law Article 113 Paragraphs (2) and (3): a maximum imprisonment of 3 (three) years and/or a maximum fine of IDR 500,000,000.00 (five hundred million rupiah) for transforming without permission; And a maximum prison sentence of 4 (four) years and/or a maximum fine of IDR 1,000,000,000.00 (one billion rupiah) for distribution without permission.   But what if you argue that you’re doing it for free?   For educational reasons and not charging fees by distributing it for free, you could say that this activity does not harm the reasonable interests of the Creator, known as the term “Fair Use.” However, it would be best to remember that Fair Use does not look at elements of commercialization. As long as the Copyright holder objects, you can be considered violating Copyright.   The basis is stated in the Explanation of Article 44 paragraph (1) letter a of the Copyright Law, which states “Reasonable Interests of the Creator or Copyright Holder” are interests based on balance in enjoying the economic benefits of a Creation, and it is proven that Bung Hatta’s family has submitted object.   Reasons for Bung Hatta’s Family to Object   In their statement via social media X (Twitter) on June 9, 2024, the family of Halida Hatta, Bung Hatta’s youngest daughter, expressed disappointment from Bung Hatta’s heirs over the piracy of Bung Hatta’s writing, which was shared on social media X. In another statement, the heir reminded us that even though the post was taken down, it can still be prosecuted legally.   The heirs stated that since 1988, Meutia Farida Hatta, the first daughter of Bung Hatta, together with the publisher LP3ES, have collected his works, up to 9 (nine) volumes, so that his writings do not disappear and can be accessed by the public, both by purchasing the physical book in a bookstore or online, or accessing it for free at the National Library.   In their follow-up statement, the heir stated that Bung Hatta’s family had followed the Copyright Memoir, which were published in 1978 by the publisher Tinta Mas before being republished by the publisher Gramedia and then collected and republished by LP3ES. The family does not intend to share or publish it themselves because they are paying respect to the Economic Rights of each publisher. And for now, all of Bung Hatta’s works can be purchased officially at the LP3ES Book Gallery.   Therefore, if you have good intentions to share educational information from a book, especially if you want to share the entire contents of the book for free, the most important thing you have to do is contact the heirs of the Creator. This is because you will get legal information about a work. For example, who is also the Copyright holder for the work, whether it can still be obtained legally, or when the Copyright protection period ends?   So don’t assume that non-commercial actions you carry out without permission will not have legal consequences. The Copyright Law guarantees that Moral and Economic rights are the Exclusive Rights of the Creator and his heirs until the work falls into the Public Domain.   You might also want to read: Demystifying the Public Domain: Permissions and Limitations Should you need further information regarding Copyright and Intellectual Property protection in Indonesia or abroad, do not hesitate to contact us via email: [email protected].

Steps to Consider if Your Copyright is Infringed in Indonesia - AFFA IPR

Steps to Consider if Your Copyright is Infringed in Indonesia

Copyright

To date, Indonesia is still considered as a “hot bed” for Copyright infringements. Many infringements vary from petty ones to the heavily industrialised ones. Copyrights are protected under the Law No. 28 Year 2014 on Copyrights and by definition, a (Copyright) Creation is any creative work in the fields of science, art, and literature that is produced based on inspiration, ability, thought, imagination, dexterity, skill or expertise expressed in tangible form. A Creator is a person or several people who produce a Creation. Meanwhile, the Copyright Holder is the Creator or other party, including a company that is also given the right by the Creator to obtain Exclusive Rights and economic benefits from a Creation.   Therefore, if another party benefits from a work without permission from the Copyright Holder, it can be categorized as a Copyright infringement. In particular, piracy activities also have the meaning clearly stated in Article 1 of the Copyright Law, namely the illegal duplication of works and/or related rights products and the widespread distribution of goods resulting from such duplication to obtain economic benefits.   Because economic benefits are the Copyright Holder’s exclusive right and infringement is still widespread in the modern era, if you are a Creator or Copyright Holder, you need to understand your rights and know what you can do when your work is pirated in Indonesia.   Record Your Creation before the Copyright Office under the DIrectorate General of Intellectual Property (DGIP)   Copyright protection is granted automatically from the time the copyrighted work is produced. This is different from other Intellectual Property, such as Trademarks and Patents, which must be registered first to obtain protection. Therefore, the term used to register copyright with the Directorate General of Intellectual Property (DGIP)—Ministry of Law and Human Rights (Kemenkumham) is “recordation.”   Hence, no recordation is required to prosecute or file a lawsuit against a party deemed to have violated Copyright. However, suppose there is a dispute regarding Copyright ownership of a work. In that case, a work recordation letter issued by the Minister, in this case the DGIP, and recorded in the General Register of Works is initial proof of ownership of a work and is substantial evidence in court.   Prioritize Mediation, Amicable Settlements, Before Pursuing Criminal Charges   Article 95 Paragraph (4) of the Copyright Law stipulates that Copyright violations, including piracy, must take mediation before making criminal charges.   So if you find that your work has been pirated, you can give an informal warning first, followed by a warning letter, if you don’t get a response.   Contents of the Warning Letter: In general, there are no standard rules governing the contents of a warning letter, but it must clearly describe the following 5 (five) things: Intended party; The problem being addressed; The demands of the sender, which the recipient must implement; Legal basis and legal standing of the sender; and The period for demands must be met.   Violations in Social Media/E-Commerce   Piracy is rampant on various social media and e-commerce platforms in the internet era. Technically, each platform also provides a complaint service if pirated goods are found. If you find Trademarks or Copyrights being bought and sold there without permission, you can start from the self-report system or go to the particular page provided.   In general, you need to prepare the following 3 (three) things if your report is to be followed up: Proof of ownership of the work in the form of a work recordation letter issued by the Ministry of Law and Human Rights, a statement of work ownership signed by you, or a similar document; Proof of your identity (ID card, driving license, passport, or similar); and Power of attorney from the Copyright Holder by the document proving ownership of the work you attached (if you are not the owner of the Copyright but are the recipient of the power of attorney from the Copyright owner to make a report).   You might also want to read: Tackling Counterfeiters on Indonesian E-Commerce Sites   Suppose pirates or platforms ignore your warning. In that case, you need to engage an experienced Intellectual Property Consultant who can provide further advice so that piracy activities from other parties can be stopped immediately or proceed with criminal prosecution at the Commercial Court.   Violations By Fellow Creators   A problem that also often occurs in Copyright disputes is disputes between Creators who claim they have the right to get more than others. For example, a comic was created jointly by an illustrator, a colorist, and a writer. If, in the future, the writer feels that his share is smaller, he might claim his rights. There was also a case that went viral in which a band was subpoenaed and prohibited from performing songs by writers who had left the band.   That is where the critical role of copyright recording with DGIP is to avoid disputes that may arise in the future between creators. In the Copyright Recordation, which is then included in the DGIP General Register of Creations, you can consist of all existing Creators. But again, mediation is still the most recommended route before trial.   Furthermore, you can also register a License Agreement for the work you own because it is possible for you, as the Creator of a character, to need vendors or other parties interested in getting economic benefits from your creation. For example, suppose a t-shirt or toy manufacturer is interested in commercializing your work in massive quantities and distributing it throughout Indonesia. In that case, you need to make a clear License Agreement that details how much royalties or profit sharing scheme you will get and register the agreement with DGIP as a firm grip in case of default or dispute in the future.   You might also want to read: Unveiling Copyright Ownership in the Film Industry: Legal Perspectives Should you need more information about Copyright protection in Indonesia, don’t hesitate to contact us at…

Various Intellectual Properties in Football - AFFA IPR

Various Intellectual Properties in Football

Intellectual Property1 Comment

At the beginning of May 2024, the United Nations (UN) General Assembly declared May 25 as the World Football Day. This date was chosen to commemorate the 100th anniversary of the first football competition at the 1924 Olympics held in Paris, France. The UN hopes this day will always be celebrated as a day of world unity, which can unite cultural differences and socio-economic barriers.   As the most widely played sport, Football also involves a lot of Intellectual Property, with a turnover of up to trillions of dollars. This includes Trademarks, Patents, Industrial Designs, Copyrights, Trade Secrets, Domain Names, and License Agreements. Below, we describe some of the Intellectual Property we most often encounter in Football.   Trademark   Every competition and tournament certainly has a name. We know the FIFA World Cup, UEFA Champions League, English Premier League (EPL), and Asian Football Confederation (AFC). These names are synonymous with quality and entertaining games. Most importantly, they are all registered Trademarks that unauthorized parties cannot use arbitrarily. You cannot just produce and sell t-shirts with the UEFA Champions League logo without permission from the Union des Associations Européennes de Football.    Trademarks in football are not only related to competition; several names of top players have also been registered as Trademarks. For example, “CR7” belongs to Cristiano Ronaldo, “Leo Messi” belongs to Lionel Messi, and even Mbappe’s celebration pose. You might also want to read: Kylian Mbappé Has Trademarked His Iconic Goal Celebration – Why Is It Possible?   Patent An innovation that cannot be separated from modern football is the Video Assistant Referee (VAR). With this technology, referee decisions on the field can be more accurate, not controversial. VAR, whose patent is owned by Hawk-Eye Innovations (part of Sony), was first used at the 2018 FIFA World Cup in Russia. With VAR, the referee can quickly check whether a goal is legal, a player is caught offside, or cameras from many sides cover other violations.   As a Patent, FIFA pays royalties to Hawk-Eye Innovations for its use. Hawk-Eye also maximizes its income by marketing this technology to 90 countries worldwide. However, with a cost per season of around USD 6.2 million, not all leagues worldwide can afford to use it.   The Patent for football also includes the ball itself. In almost every World Cup event, the ball is presented with more sophisticated technology than before, which is expected to increase the accuracy of the players’ shots.   Industrial Design   Like the ball in football, the shoes players use may contain patent-protected innovations. But if not, the shoes and all the clothes we see are registered as Industrial Design.   Football jerseys or costumes are one of a football club or team’s biggest sources of income. For diehard fans, wearing a jersey when watching a match or even going to the mall is a matter of pride and proof of their support for their favorite team.   However, jerseys are also among the Intellectual Property most often pirated. As true fans, of course, we can choose to only buy the original because only then is the money we spend commensurate with the quality we get, and most importantly, the income will go to the club we support.   Copyright   League and match materials, images, promotions, or other content related to football broadcasts fall into the Copyright category. Each match is owned by a different owner, who also sells broadcast rights to TV stations in each region.   These Copyright holders even opened a bidding scheme to give the highest buyers the opportunity to obtain the Broadcasting Rights. Because it costs a lot of money to get the rights, it is understandable that the Broadcasting Rights holders are very protective of the material they own. They don’t let other parties broadcast it in the regions they already cover, or prosecution will be carried out.   Trade Secret   Playing strategies, including technical details of formations and other confidential information, can be categorized as Trade Secrets. These secrets give each team a competitive advantage by not revealing certain important information to the public or rival teams. All team members, including the technical and health trainers, are bound by a Non-Disclosure Agreement (NDA).   Domain Name   The Domain Name associated with each league and competition is very important in maintaining its online presence and marketing. Fifa.com, uefa.com, and the-afc.com have been registered to prevent cybersquatting and Trademark misuse. The fifa.com domain, for example, is available in various languages to make it easier to access and search for the latest information and to disseminate official information to all media and football fans throughout the world.   License Agreement   Licensing Agreements may include Trademark Licenses to produce and sell merchandise, mobile phone applications, video games, and more. Game developers who want to present a team with the appropriate club name or accurate appearance of the players have to pay significant royalties to FIFA.   Finally, in organizing football, we must be aware of and involve all related Intellectual Properties (IPs). In fact, IP is the financial generator in every activity. Therefore, don’t forget to involve IPs in every tournament you run and reap the benefits. Should you need further information regarding Licensing Agreements, Trademark registration, Patents, Industrial Designs, Copyrights, or other Intellectual Property, please do not hesitate to contact us at [email protected].

International IP Index 2024: Indonesia to catch up on IP Commercialization - AFFA IPR

International IP Index 2024: Indonesia to Catch Up on IP Commercialization

Intellectual Property1 Comment

Every year, the United States Chamber of Commerce releases the “International Intellectual Property Index,” which ranks countries worldwide based on their growth in Intellectual Property, commercialization of Intellectual Property assets, law enforcement, system efficiency, and membership and ratification of international treaties. This year, Indonesia is ranked 49th out of 55 countries, or 7th from the bottom. What caused it?   The International Intellectual Property (IP) Index is a comprehensive assessment of the intellectual property framework of countries worldwide. It indirectly shows a country’s policies in encouraging innovation, creativity, economic growth, and wider investment opportunities.   Intellectual Property Becomes an Important Decision for Investment   Intellectual Property as an asset must be recognized. Today’s large companies are at the forefront thanks to their Intellectual Property assets. Technology companies such as Tesla, Apple, Microsoft, and even Walt Disney became rich thanks to the Copyrights, Patents, Trademarks, Industrial Designs, and Trade Secrets they owned. Therefore, when a country cannot provide a climate conducive to protecting Intellectual Property (IP), it is considered to have failed to protect the wealth of its citizens and its business ecosystem. If this is the case, it makes sense that investment in the lowest-rank countries will be smaller than in the upper-rank countries.   The International IP Index published by the United States Chamber of Commerce was first published in 2012. At that time, it only described the performance of 11 countries: the United States, Australia, Brazil, Chile, China, India, England, Canada, Malaysia, Mexico, and Russia. The 12th edition, released in February 2024, has experienced an increase from the previous year, covering 53 countries. This year’s 55 countries have covered over 90% of the world economy’s Gross Domestic Product (GDP), so it is hoped to represent the condition of world IP.   From Southeast Asian countries, the IP Index maps the performance of Singapore, Malaysia, the Philippines, Brunei, Vietnam, Thailand, and Indonesia as samples. Unfortunately, Indonesia is indeed the lowest in Southeast Asia.   The following is the overall ranking of the 2024 International IP Index:   1 United States 95,48% 29 Peru 49,82% 2 United Kingdom 94,12% 30 Chile 49,72% 3 France 93,12% 31 Colombia 48,84% 4 Germany 92,46% 32 Saudi Arabia 48,42% 5 Sweden 92,12% 33 Brazil 46,52% 6 Japan 91,26% 34 United Arab Emirates 46,00% 7 The Netherlands 91,24% 35 Jordan 44,70%  8 Ireland 89,38% 36 Honduras 42,16% 9 Spainl 86,44% 37 Philippines 41,58%  10 Switzerland 85,98% 38 Brunei 41,08%  11 South Korea 84,94% 39 Ghana 40,88%  12 Singapore 84,92%  40 Vietnam 40,76% 13 Italy 83,90% 41 Ukraine 40,30%  14 Australia 80,70% 42 India 38,64% 15 Hungary 76,90% 43 Thailand 38,28%  16 Canada 76,22% 44 Kenya 37,88% 17 Israel 72,74% 45 South Africa 37,28%  18 Greece 71,42% 46 Argentina 37,00% 19 Poland 70,74% 47 Nigeria 36,34%  20 New Zealand 69,36% 48 Egypt 33,86% 21 Taiwan 67,34% 49 Indonesia 30,40% 22 Morocco 62,76% 50 Ecuador 29,58% 23 Mexico 59,98% 51 Kuwait 28,42% 24 China 57,86% 52 Pakistan 27,42% 25 Dominican Republic 55,30% 53 Algeria 26,36% 26 Costa Rika 55,04% 54 Russia 25,00% 27 Malaysia 53,44% 55 Venezuela 14,10% 28 Turkiye 51,04%   Why is Indonesia’s Ranking Low?   Indonesia’s performance in the index fell 0.02% from the previous year but remained at the same rank.   Indonesia’s Performance based on Indicators Source: 2024 International IP Index – U.S. Chamber of Commerce   From the graph above, it can be seen that the number of Patents owned by Indonesia still needs to be stronger, unable to keep up with the growth of Copyrights, Trademarks, and Industrial Designs. Among all the IPs used as indicators, only Copyright is closest to the Asian average performance.   For other indicators, Indonesia is quite good regarding system efficiency but very low in IP asset commercialization. It is the country with the lowest score for this indicator, recorded at only 4.17%. It is below Ecuador, Venezuela, Ghana, Kenya, Russia, and even Vietnam.   Indonesia’s ranking based on the Commercialization of IP Asset Indicator Source: 2024 International IP Index – U.S. Chamber of Commerce   The commercialization of IP Assets is an indicator that measures the presence of barriers and incentives for the commercialization and licensing of IP assets. In more detail, this indicator includes barriers to technology transfer, registration and disclosure requirements of licensing agreements, direct government intervention in setting licensing terms, and the existence of tax incentives for the creation and commercialization of IP assets.   In particular, the United States Chamber of Commerce assesses that Presidential Regulation of the Republic of Indonesia Number 77 of 2020 concerning Procedures for Implementing Patents by the Government has gone far beyond the stated goals and circumstances for the issuing of compulsory licenses under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, minimum standards for the regulation by national governments of different forms of IP as applied to nationals of other World Trade Organization (WTO) member nations. This presidential regulation is considered to hinder the transfer of technology on Patents, and Biopharmaceutical patentability standards are outside international norms.   However, Indonesia is generally at the bottom of the ranking because its commercialization foundation still needs to be stronger. Public awareness of IP still needs to improve; the knowledge of IP as an asset is minimal. There are still many people who do not appreciate IPs, not because they cannot afford to buy, but because the tendency to enjoy the IPs without paying still exists. Copyright growth is high, but the market hopes these works can be enjoyed for free. As a result, creators scream, and their productivity decreases. This also causes the innovation climate in Indonesia is not good. Because the public still needs to consider innovation to be something that can be commercialized, the growth of Patents from Indonesia is low. dapat dikomersialisasikan, pertumbuhan Paten dari Indonesia pun rendah. To change this mentality, more than education is needed; concrete steps from the government and private sectors are needed to give the highest appreciation to every existing IPs from within and outside the…

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Enters Public Domain – Mickey Mouse Stars in 3 Horror Films?

Intellectual Property, Trademark, Copyright

Enters Public Domain – Mickey Mouse Stars in 3 Horror Films? Mainstream news channels are busy reporting that Mickey Mouse, The Walt Disney Company’s mascot, has entered the Public Domain as of January 1, 2024. As a result, many parties are immediately looking for their fortune by presenting this black mouse in various media. Uniquely, they all have a horror theme!   1. The Vanishing of S.S. Willie Straight released on January 2, 2024, on the Night Signal Entertainment YouTube channel, this is a short film less than 10 minutes long, which assumes that the film “Steamboat Willie” published in 1928, the first film to feature the character Mickey Mouse, is an actual event.   Mickey, Minnie, and other animal characters are displayed in realistic form, covered in retro visuals, but with different names. The horror side is that their story ends tragically at the bottom of the river, contrasting with the cheerful original animated version.   2. Mickey’s Mouse Trap Also released on the same day is a 2-minute trailer for the film, which will be released in March 2024. This time, the story is about a serial killer who wears a Mickey Mouse-like mask and operates in an amusement park.   3. Steamboat Willie The third horror film to utilize Public Domain Mickey is the work of Director Steven LaMorte, who previously directed “The Mean One” (2022), a horror-comedy film inspired by “The Grinch” (2018). Steven admitted that filming of Steamboat Willie will take place this spring, and the concept remains a horror-comedy in the style of The Mean One. Steve confirmed to the media that his work would not violate the law because it would not use the name Mickey Mouse but Steamboat Willie.   4. Infestation: Origins Lastly, Mickey is in a PC game that up to four people can play. Here, you can play as a rat exterminator set in the 80s. But then, you are chased by a monster resembling Mickey Mouse! This game produced by Nightmare Forges can now be ordered on the Steam website, but the official release date has yet to be announced.   What is Public Domain? A work or Creation, including animated films, can be protected by Copyright. Then there is the Copyright Law, which regulates the validity period of Economic Rights, which is 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 permission from the Creator.   Why 95 Years Later? The Copyright Law in the United States stipulates that a work’s validity period is during the Creator’s life plus seventy years after the Creator dies. However, this regulation was only applied to all works published starting January 1, 1978. Meanwhile, Steamboat Willie was already present 50 years earlier. That’s why the film still has 95 years of Economic Rights and ends on December 31, 2023. Finally, Steamboat Willie only entered the Public Domain as of January 1, 2024.   Now Everyone is Free to Use Mickey Mouse? Certainly not! Because the only thing in the Public Domain is Mickey Mouse in Steamboat Willie: the Black and White Mickey without gloves. What also needs to be remembered is that as a character, two types of Intellectual Property (KI) are attached to Mickey Mouse: Copyright and Trademark.   If a copyright has an expiration validity period, then a trademark can be renewed every ten years. Mickey Mouse is a registered Trademark still owned by The Walt Disney Company. That’s why none of the works above that use Public Domain Mickey use the name “Mickey Mouse.” They consciously did not use this name to avoid legal disputes. They only dare to use “Mickey” or “Steamboat Willie,” common names not registered by anyone.   So, even though Steamboat Willie has entered the Public Domain, that doesn’t mean you are free to produce and/or sell products that contain colored versions of images or words of Mickey Mouse. The point is that Public Domain doesn’t necessarily make your own Mickey Mouse.   Mickey Mouse Still Owned by The Walt Disney Company Amid widespread news related to the Public Domain, the role of the media is needed to educate people so as not to create new problems. Because incomplete reporting can make many parties who are less aware of IP, including SMEs, subject to warning letters from Disney’s lawyers. They join in on the hype by producing products depicting colored versions of Mickey Mouse and containing the word without realizing the potential for Copyright and Trademark violations.   Remember that Walt Disney is a big company in the IP business. They understand the ins and outs of Intellectual Property law. Apart from that, they also continue to update their IP-based characters and their source of income. That is the only way the validity period of Economic Rights in Copyright can continue to be extended. Steamboat Willy is only one of tens of thousands of works featuring IP-based characters, a source of income for the Walt Disney Company. Missing one will not affect its revenue, which since 2022 will be above USD 80 billion per year.   From Walt Disney, we learn that creating original characters, if managed well, will be more profitable and provide long-term benefits. Instead of making imitation works that take advantage of the momentary hype. The public will also see it as a cheap work or a parody of no quality.   Should you need further information about Public Domain, Copyright, or other Intellectual Property management, please do not hesitate to contact us via [email protected]. Sources:  Coming Soon Variety  

Unveiling-Copyright-Ownership-in-the-Film-Industry-Legal-Perspectives-affa-global

Unveiling Copyright Ownership in the Film Industry: Legal Perspectives

Intellectual Property, Copyright1 Comment

Unveiling Copyright Ownership in the Film Industry: Legal Perspectives There is still often a question among the public about who owns the copyright for a large-scale work, such as a movie. Because movies, especially feature films, involve many derivative works and other interrelated supporting works. Starting from scripts, background music, movie posters, and even a game specifically made to promote the movie.   So, who owns the copyright of all these works? Does the Director hold everything? Producer? Or both of them?   Definition of Copyright According to Article 1 of Law No. 28 of 2014 concerning Copyright (Copyright Law), what is meant by Copyright is the Exclusive Right of the Creator, which arises automatically based on declarative principles after a work is realized in actual form without reducing restrictions by the provisions of statutory regulations.   From the definition above, there are two essential emphases of Copyright as follows: 1. Exclusive Rights, consisting of: Economic Rights The Exclusive Right of the Creator or Copyright Holder to obtain economic benefits from the Work Moral Rights Rights that are eternally inherent in the Creator 2. Arises automatically based on Declarative Principles    No recording or registration is required to obtain protection.   Then, a Creator is a person or several people who produce a creation individually or together. Movies in the Copyright Law are referred to as Cinematography as mentioned in Article 40 Paragraph (1) letter (m), which means moving images, including documentary movies, advertising movies, reportages, or story films made with scenarios, including cartoon or animation films.   Cinematography works can be created on celluloid tape, video tape, video disc, optical disc, and/or other media that allows it to be shown in cinemas, big screens, television, or other media.   Copyright Holders of Movies/ Cinematography Works In general, 3 (three) parties are referred to as Copyright Holders, namely: Copyright Owner/Creator The party who legally receives the rights from the Creator Another party who receives further rights from the party who received the rights   However, if we talk about specific copyright holders for movie-related products, the details are as follows: Movie Related Products Types of Creation Notes Original/ raw/ in-editing process/ final movie. Copyright for Cinematographic Works Creator: Director Copyright Holder: Film Producer Script/ Story Copyright for Written Works Creator: Script/Story Writer Book – If the film is adapted from a book. Copyright for Books/Writing Works Creator: Book Author Adaptation Copyright Holder: Film Producer Book – If the film is adapted into a book. Copyright for Books/Writing Works Creator: Book Author Adaptation Copyright Holder: Book Publisher Background Music (BGM), scoring, soundtrack, sound effects, or other related music works. Copyright of Songs and/or Music Creator: Song Creator (can be assigned to Music Publisher) Related Rights: Musicians, Singers, and Record Producers Movie posters Copyright for Drawing/Painting Artworks Creator: Poster Designer Movie Exhibitions/ advertising/ promotions (photography, banners, etc.) Copyright for Photographic Works, Portraits, Databases, Video Games, Computer Programs, Appearances in the form of Written Works Creator: Photographer, Designer, and Game/Computer Programmer.   Knowing who the creator of the creations above is, if you are involved in them, especially if your position is the creator, you are entitled to Exclusive Rights to cinematographic works, valid for up to 50 (fifty) years from the first announcement.   Benefits of Copyright Recordation Also, please ensure your name is recorded in the Creation Recordation Letter issued by the Minister and in the General Register of Works, which serves as initial proof of ownership of a work and is substantial evidence in court. Even though it is not mandatory, Copyright recordation is beneficial for the following 2 (two) things: Prevent misuse of recorded works and simultaneously prevent losses arising from abuse of said works. Make it easier for Copyright owners to claim royalties for recorded Copyright licenses.   Should you have further questions regarding Copyright and its registration in Indonesia and abroad, do not hesitate to contact us via [email protected]. Sources: Law Number 28 of 2014 concerning Copyright (Copyright Law) Directorate General of Intellectual Property (DGIP)  

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5 Common Types of IP Violation in Indonesian E-Commerce

Intellectual Property

5 Common Types of IP Violation in Indonesian E-Commerce The presence of e-commerce has changed the shopping habits of Indonesians. Statista Market Insights data predicts that users by the end of this year will reach 196.47 million, or an increase of more than 22 million since 2022.  The Central Bank of the Republic of Indonesia also stated that the value of e-commerce transactions in 2022 will reach IDR 476.3 trillion. This number is predicted to continue to increase because active e-commerce users in Indonesia still account for only around 30% of transactions in cyberspace.   By now, opening an e-commerce site or app is the easiest way to compare the cheapest product we want. However, with all this convenience, you must still be aware of the potential for Intellectual Property violations in e-commerce. You need to remember that even though the platform organizers have tried to carry out sorting even with AI, it will only be helpful if you, who have self-screening capabilities, are easily tempted by the low prices of products that should be expensive.   Counterfeit goods are not the only potential for Intellectual Property (IP) violations in e-commerce; there are at least 5 (five) types of IP violations, which we can describe as follows:   1. Sale of Counterfeit Goods Even when selling fake goods, the method is more sophisticated, not blatantly using names or products with very different qualities. a. Photos taken from the official site; Suppose the seller is not an official store but uses an official photo. In that case, you should immediately be suspicious and use your right to ask for some actual photos of the product before making a transaction.   b. Preloved with invoice; If the seller uses pictures that show an invoice with the product, like pretending it was purchased from an official store, please don’t hesitate to ask for some photos of the actual product before making a transaction.   c. Normal price for a counterfeit product; If you are a collector of specific brands, you must know the shape, color, or placement of the official logo on the product. You may also know how many variants are produced for this season, including the look of the limited variants. So you won’t be deceived when you find a product with a different color, which shouldn’t be available in the market, even though it is the same price as the original product.   d. Using the word ORI or SUPER ORI or HIGH GRADE; The word “ori,” which means original, should only be used for authentic products. However, sellers of counterfeit goods have recently used this word to attract buyers. Moreover, if the inclusion of the word “ori” is coupled with the price of the item being much cheaper, you should be suspicious of its authenticity.   e. Cheap products directly from the factory. It would be best if you were also wary of this description when you find a cheaper good on e-commerce. Only official stores or distributors can do this if the product comes from Indonesia and gets wholesale price benefits. Another possibility is stolen goods that are not complete or of bad quality. Are you sure you still want to buy something like that?   2. Promoting Product Without Verification This type is the same as in the first category; the difference is that it involves the lure of a big discount, which results in the price being much lower than the market, but it is not sold by official stores or distributors (which in the same time are not providing the same promotions). Apart from the possibility that what is being sold is not a genuine product, it could also be that the product is smuggled without paying official import taxes, with questionable completeness and quality.   3. Selling Irresponsibly Through E-Commerce Sometimes, some health and beauty products are sold using a “direct selling” scheme, and sale activities via e-commerce are prohibited. Because their exclusive products are only sold through direct selling methods to downlines/registered members. So direct sales to the public (non-members) are a violation because they destroy the agreed business scheme and membership system.   4. SOPs for IP Violations in E-Commerce Are Not Yet Standardized Even though e-commerce has acted as an intermediary that will hold funds from buyers and return them if there is a problem with the goods, there are still loopholes that allow transactions to be completed even though the goods have a problem. For example, the buyer forgets to unbox with a video or only immediately checks the item’s authenticity after the deadline. If you are caught in this problem, the procedures of complaint from each e-commerce are not standardized. The absence of customer service that truly understands the situation makes this even more difficult. Especially if the customer service is entirely automated without involving humans.   5. Borderless E-Commerce Platform With the increasingly open cross-border international trade through e-commerce, you must understand the risks of purchasing goods outside Indonesia. If you find lower prices for goods, even though they are shipped from abroad, and you know that there is an official distributor in Indonesia, your vigilance needs to be increased even more. Because there could be an IP violation in the form of distribution without permission/violating the law/not paying import tax, which is not impossible, within the time frame of the order process, the police arrest the seller in the country of origin, and you will not get the goods you want.   All of the IP violation practices above harm you as a buyer and significantly impact the country. These losses include: Negative Reputation of Indonesian From the latest Priority Watch List (PWL) 2023 report, released by the United States Trade Representative (USTR), Indonesia, along with Argentina, Chile, India, Russia, China, and Venezuela, is still on the investment blocklist because it is prone to piracy practices. In particular, the Notorious Markets for Counterfeiting and Piracy 2022 report, also released by USTR, lists several local e-commerce sites…