INTELLECTUAL PROPERTY LAW IN INDONESIA AFTER 2001

This paper reviews the major changes of intellectual property condition in Indonesia after 2001. In that year, Indonesia, which has become a member of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) since 1994, was ready to meet its commitment under TRIPS. To do so, Indonesia has made changes in the areas of legislation, administration, court proceedings


A. Introduction
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) has been controversial 1 VLQFH LWV ¿UVW LQFHSWLRQ $V RQH agreement under the World Trade Organization (WTO), the members of such organization are required to be bound to TRIPS.The agreement sets forth the minimum standards of intellectual property (IP) rights protection.Although it provides privileges for developing and least developed country (LDC) members to delay the application of the agreement 2 and does not require all member countries to harmonize their IP laws, the agreement obliges them to apply the same standards regardless of their level of development.
The year 2001 is important for IP in Indonesia as the journey of TRIPS commenced in that year.Despite the fact that Indonesia has joined the WTO and become the party of TRIPS since 1994, as a developing country, 3 Indonesia delayed WKH LPSOHPHQWDWLRQ RI 75,36 IRU ¿YH \HDUV TRIPS was supposed to be implemented fully in Indonesia in 2000, however, only a year later, did the government of Indonesia feel they were ready to do so. 4Since that year, despite many sceptical FULWLFV RQ WKH EHQH¿WV RI 75,36 LQ ,QGRQHVLD there have been many changes in the country's IP condition.Even though these changes still have not transformed the image of IP condition in Indonesia, however they are part of evolution for the better IP condition in Indonesia.
This paper is an attempt to review the major changes of IP condition in Indonesia after 2001.The areas that will be reviewed are legislative, administrative, court proceedings and enforcement.
It will also see the problem issues surrounded the implementation of such changes in Indonesia.The discussion of controversial aspects of TRIPS can be found, for instance, in Peter Drahos and Ruth Mayne (Eds.), 2002, Global  Intellectual Property Rights: Knowledge, Access and Development, Palgrave Macmillan, Hampshire and New York and in Peter Drahos  and John Braithwaite, 2002, Information Feudalism: Who Owns the Knowledge Economy?, Earthscan, London.

2
A developing country member can delay the date of application of TRIPS for four years and LDC is entitled to delay for 10 years.See, Section 65 (2) and 66 (1) of the TRIPS Agreement.it takes years to issue one IP implementing decree. 6In fact, despite the fact the core legislation has already stated about the decree more than 10 years ago, some crucial IP issues, such as patent compulsory license 7 and wellknown trademark, 8 do not have implementing decree yet.One possible explanation why the issuance of such implementing decree has been so slow is that the government needs to prioritise other issues which are more crucial than IPR.As the country has not recovered fully from the economic and political turmoil since the late 1990s, the government is overwhelmed with abundant complex issues.$SDUW IURP WKLV LW DOVR UHÀHFWV WKDW ,35 KDV not been a prioritised issue in the perspectives of Indonesian government.
Besides the core IP legislations, the government also enacted some legislations and regulations that contain IP provisions.One example of this is Law No. 18 of 2002 on the National System for Research, Development and the Application of Science and Technology.The Law encourages the XVH RI ,35V LQ PDQDJLQJ UHVHDUFK ¿QGLQJV that are potential to be commercialized and considered IP as an asset of university or research and development (R&D) institutions. 9Further, Article 13 (3) of this law requires every university and R&D institutions to establish Sentra HKI. 10 The implementing decree for this law, Government Regulation No. 20 of 2005 provides the details of the scheme on technology transfer of IP and the management of income resulted from the IP commercialization of research activities.
Since 2008, the Directorate General of Intellectual Property Rights (DGIP), as the government institution in charge for managing IPR issues in Indonesia, has planned to revise four current IP laws, namely Copyright Law, Trademark Law, Patent Law and Industrial Design Law. 11The amendment of these four laws is already included in the Prolegnas 12 2010-2014 13 and they were planned to be discussed in the Parliament of Indonesia in 2011. 14However, since the drafts are not ready yet and they still do not have academic drafts, the amendment of these four laws is still not discussed in 2012.
Apart from the reforms in the areas covered by TRIPS, Indonesia is planning to regulate traditional knowledge (TK) and traditional cultural expressions (TCEs) in one sui generis law.Even though the 2002 Copyright Law already contains provisions that protect TCEs or folklores, 15 they are FRQVLGHUHG QRW VXI¿FLHQW HQRXJK WR SURWHFW Indonesian TCEs/folklores.In 2007, the government drafted a Bill on Protection and Use of Traditional Knowledge and Traditional Cultural Expressions.The Bill LQFOXGHV SURYLVLRQV WKDW REOLJH EHQH¿W sharing from TK/TCEs commercialization activities between the user and the holder or custodian of the TK/TCEs. 16This Bill also discriminates foreign users by requiring them WR ¿OH DSSOLFDWLRQ WR WKH JRYHUQPHQW EHIRUH they can commercialize Indonesian TK/ TCEs, while local Indonesian do not have to do so. 17Similar with the amendment of the four existing IP laws mentioned above, this Bill has also included in the Prolegnas 2010-2014. 18However, it is still not one of the laws to be prioritized discussed in 2012. 19b) Administrative Reforms In the administrative sector, there is a progress after the power to receive application for IPR transferred to the branch agencies of the Department of Law and Human Rights in the provincial and district level. 20Before 2001, the applications for IPR were only VXEPLWWHG WR WKH FHQWUDO RI¿FH RI WKH '*,3 in Tangerang-West Java. 21Consequently, this made the applicants who lived remotely from WKH FHQWUDO RI¿FH ZDV GLI¿FXOW WR SURFHVV WKHLU IP registration.Further implication was it made the cost of IP registration higher since there were extra costs to submit the application GRFXPHQWV WR WKH FHQWUDO RI¿FH LQ 7DQJHUDQJ Because sending the applications via postal service is unreliable, most of the applicants preferred to travel directly to Tangerang or used the service of other parties, such as ,3 DJHQW WR DFW RQ EHKDOI WKHP ¿OLQJ WKH ,3 application.Both options, certainly, need extra costs that were not small.
Although the initiative to give the 5HJLRQDO ,3 2I¿FHV DXWKRULW\ WR UHFHLYH ,3 application is positive, however it is doubtful whether this initiative has been worked well so far.It may make the process of IP registration is easier for the applicants living IDU IURP WKH &HQWUDO 2I¿FH +RZHYHU LW LV VWLOO not effective to make IP registration process is faster and low costs.Lack of technology assistance and skilled human resources makes many distant applicants still prefer to submit GLUHFWO\ WKHLU DSSOLFDWLRQV WR WKH FHQWUDO RI¿FH )RU LQVWDQFH RI EUDQFK RI¿FHV LQ WKH SURYLQFLDO OHYHO RQO\ RI¿FHV ZKLFK KDYH access to Intellectual Property Digital Library (IPDL) 22 which created to help the process of IP registration by searching the existing registered IPRs.To date, the number of DSSOLFDWLRQV FRPHV IURP WKH UHJLRQDO RI¿FHV are still low.In 2008, the total applications for trademarks, copyrights, patents and industrial designs which submitted to the regional RI¿FHV ZHUH RQO\ OHVV WKDQ RI WKH ZKROH year applications in each area mentioned. 23HVLGHV WKDW WKH 5HJLRQDO 2I¿FH RQO\ has function to forward IP applications to the &HQWUDO 2I¿FH ZKLFK UHPDLQV DV D JRYHUQPHQW DJHQF\ ZKLFK JUDQWV ¿QDO DSSURYDO RI ,35V ,W PHDQV WKH EXUGHQ RI WKH FHQWUDO RI¿FH WR process IP registrations in all over Indonesia is still huge.For example, the Directorate of Trademark of DGIP is overloaded with 45,000 applications on average each year. 24This makes the total process of application takes more than the time required in the legislation.To illustrate, the Law No. 15 of 2001 on Trademark provides that the time required to process trademark application, starting from the application submission until the issuance RI FHUWL¿FDWH LV PRQWKV GD\V +RZHYHU in practice, the process is minimum on average is two years 25 and the delay usually is worse if the application is not assisted by IP agents. 26he ineffective function of the Regional 2I¿FH KDV HIIHFW DOVR RQ WKH FRVW RI ,3 application process.As mentioned previously, VLQFH PDQ\ 5HJLRQDO 2I¿FHV FDQQRW SURYLGH complete IP registration processes, applicants OLYLQJ IDU IURP WKH &HQWUDO 2I¿FH FKRRVH WR submit application directly to the Central 2I¿FH Like the prior situation, the applicants need to spend extra costs either for travel expenses to Tangerang or for using the service of IP agents.Of these two options, using the service of IP agents is more convenient because it is less time and energy consuming.For this service, IP agents will charge them a service fee which is normally higher by twofold 27 WKDQ WKH RI¿FLDO UHJLVWUDWLRQ IHH charged by DGIP.However, this service fee is sometimes unrealistic.As an illustration, one small enterprise owner living and running business in Semarang -Central Java said that he was asked to pay Rp. 5 millions by his IP agent 28 for a trademark registration.This DPRXQW LV DOPRVW ¿YH IROG KLJKHU WKDQ WKH RI¿FLDO IHH 1R ZRQGHU WKHUH LV DVVXPSWLRQ living among Indonesians that the process of IP registrations is expensive, complicated and lengthy.
For the applicants coming from small and medium business sector, three central and regional government agencies, namely State Ministry of Cooperatives and Small and Medium Enterprises (SMCSMEs), Department of Industry and State Ministry of Research and Technology, provide programs that assist them dealing with IP issues.The programs include providing small and medium enterprise owners' consultation and training on IP matters, helping them to prepare the documents needed for IP registration and most importantly funding their application costs.For example, SMCSMEs in 2006 funded all the costs of trademarks registration for 200 products of SMEs in 10 provinces 29 and industrial design registration for 100 products of SMEs in 5 provinces in 2007. 30However, these programs are sporadic and depend mainly on annual budget of these government agencies supplied by the Finance Ministry.If the annual budgets of these government agencies are cut, these programs have low priority to be run in that year. 31It means only limited number of SMEs in Indonesia which FRXOG JHW WKH EHQH¿WV RI WKHVH SURJUDPV Therefore, these programs could not resolve the problems of IP registration encountered by the regional IP applicants, particularly applicants from small medium business sector.

Ibid.
To be registered in DGIP as an IP consultant, all applicants must be Indonesian citizens with permanent residency in Indone-VLD KROG EDFKHORU GHJUHH IURP DQ\ ¿HOG EH SUR¿FLHQW LQ (QJOLVK QRW KDYH SXEOLF VHUYDQW status, and follow the training course for IP consultants. 34The registration requirement is important to control the quality of service provided by IP agents or consultants.Besides that, it could help to narrow the operation of calo 35 that provides service to take care of IP registration with unreasonable charges and illegitimate practices.However, in 2008, at the third year after the new registration system was introduced, a magazine reported that the number of calo that represents IP applicants was still substantial. 36The today situation is probably not really different with two years ago.

Court Proceeding Reforms
Since the enactment of the new IP legislations in 2000-2002, IP disputes, including copyright, patents, trademarks, industrial designs and the layout design of integrated circuit, were no longer VHWWOHG DW ¿UVW LQVWDQFH E\ WKH 'LVWULFW &RXUWV DQG the Commercial Courts is now decided these kinds of IP disputes.However, the District Courts are still responsible to settle criminal, trade secrets and plant varieties disputes. 37For border control measures which were previously settled in the District Court, it becomes the responsibility of the Commercial Courts now. 38n terms of procedural law, the current IP legislations on copyright, patents, trademarks, industrial designs and the layout design of integrated circuit also introduce simpler procedural laws than the previous one.Prior to the enactment of those legislations, the appeals of an IP case must EH VXEPLWWHG ¿UVW WR WKH +LJK &RXUW DQG ODVW WR the Supreme Court.Now, the appeal request can be submitted directly to the Supreme Court.It has an effect to shorten the time required to settle the disputes.Besides that, the current copyright, trademark, patents and industrial designs legislations also include interlocutory injunction mechanism, which is known as Anton Pillar order.This mechanism was originally from common law system and introduced here as an effort to design Indonesian IP legislations which is in line with Article 50 of the TRIPS Agreement. 39njunction is an immediate and effective order issued by a Commercial Court to prevent further infringements, particularly to stop items in question entering market, and to avoid the disappearance of evidence.It is given to plaintiffs who can demonstrate evidences to the Court that they are IPR holders of the relevant items. 40Injunctions could be issued before the process of trial begins.The Indonesian Civil Procedural Code 41 contains similar provision with injunction which is known as provisional decision (uitvoerbaar bij voorraad -putusan serta merta).However, provisional decision is slightly different since it could only be granted after the hearing of main case had started and it usually takes for months. 42Apart from that, provisional provision could not be granted with inauditu altera parte measures as required in Article 50 (2) of the TRIPS Agreement. 43herefore, as provisional decision does not provide an immediate remedy to plaintiff, is not really useful for IP infringement cases.
Although the Anton Pillar injunction is a very useful tool for plaintiff in IPR infringement cases, however its application is rare in Indonesia.Indonesian judges are reluctant to apply it because they are not familiar with injunction which is originally from common law system.
As a country belongs to civil legal tradition, not much details provided in the Indonesian Civil Code, implementing regulations or judicial decisions on that matter.In this situation, judges are expected to be progressive and proactive to ¿OO LQ WKH JDSV +RZHYHU PRVW RI VHQLRU MXGJHV are not convenient to do so without clear direction on how to deal with injunctions.If they apply an Anton Pillar injunction, there is no guarantee that the decision would be followed by other judges in later decision on similar cases since in civil law system, precedents do not play important role to determine the content of court decision. 44f pressured, the judges would simply apply the existing regulations and practice on putusan serta merta to injunction. 45Putusan serta merta, according to the Supreme Court Circular Letters 1R RI DQG 1R RI QHHGV WR IXO¿O some requirements 46 before it is granted.To satisfy these requirements, it takes considerable time and therefore the aim of Article 50 of the TRIPS would not be achieved with putusan serta merta. 47egarding injunction, there is Indonesian government initiative to utilize injunction in IP infringement cases.In Workshop on Developing Common Perception on Practical Legal Enforcement in IP Cases which organized in 15 Decem-EHU WKHUH ZDV D VWDWHPHQW ZKLFK FRQ¿UPHG the issuance of regulation on how to implement injunction in IP infringement cases by the Supreme Court soon. 48The issuance of the regulation is a progressive step that makes the management of IP infringement cases in Indonesia more effective DQG HI¿FLHQW +RZHYHU WKH UHJXODWLRQ KDG QRW \HW been issued as at the end of 2011. 49

IP Enforcement Reforms
Related to IP enforcement, the establishment of WR IRUPXODWH QDWLRQDO policies on tackling IPR infringements, 2) to establish necessary steps for the tackling IPR infringements, 3) to determine and evaluate dispute resolutions and strategic issues to tackle IPR infringement, including the prevention and the legal enforcement undertaken, inline with the respective main duties and functions of the related institutions, 4) to provide guidance and direction as well as priorities of IPR socialization and education to the related institution and organization, as well as to the public through various activities in order to eliminate IPR infringement, and 5) to perform and enhance bilateral, regional and multilateral cooperations in order to combat IPR infringement. 50imnas PPHKI was lead by the Coordinating Minister for Political, Security and Legal Affairs (Menteri Koordinator Bidang Politik, Hukum dan Keamanan -Menkopolhukham) and the Coordinating Minister for Economic Affairs as Deputy Chairman.Acting as its Chief Executive is the Minister of Law and Human Rights and the Minister of Trade as Chief Executive Deputy. 51KH WHDP PHPEHUV DUH PLQLVWHU OHYHO RI¿FLDOV in a number of relevant government agencies in Indonesia.They work under and are responsible to the President of Indonesia.
The establishment of Timnas PPHKI was a positive initiative of the government of Indonesia, particularly President Susilo Bambang Yudhoyono, in response to the allegations by foreign countries, particularly the US, that the govern-PHQW LV QRW VXI¿FLHQWO\ FRPPLWWHG WR FRPEDWLQJ IPR infringements and to its enforcement of the country's obligations under TRIPS.The selection RI LPSRUWDQW ¿JXUHV IURP UHOHYDQW JRYHUQPHQW agencies to work in the team demonstrates the seriousness of Indonesian government to comply with the TRIPS Agreement and the demands of its trading partner.It is also anticipated that the establishment of Timnas PPHKI could resolve the entrenched poor coordination problem among the Indonesian government agencies tackling IPR legal enforcement issues.The most important thing is that Timnas PPHKI could raise the image of Indonesia as a country which is very concerned with IPR issues.
,Q WKH ¿UVW WKUHH \HDUV WKH SHUIRUPDQFH RI WKH team was considered good by domestic and foreign stakeholders.Because of its good performance and other improvements in IP sectors, such as the implementation of Ministerial of Trade Decree No. 05/M-/DAG/PER/4/2005 on the Regulation of Imports Of Machinery, Machine Accessories, Raw Material And Optical Discs which was intended to stop the production of pirated CDs and DVDs by controlling the licensing of factories and the conducting of raids against the facilities used to produce pirated optical disc and against retail outlets, 52 in November 2006, the USTR altered the position of Indonesia from being on the Watch List from the Priority Watch List (where Indonesia had languished since 1999) to being on the Watch List, a far more favourable position. 5349 Halo Jepang, "Capacity Building Jadi Tujuan Utama Kerjasama JICA dengan Dirjen HaKI" (Capacity Building Becomes the Focus of JICA and Directorate General of Intellectual Property Rights Cooperation), http://www.halojepang.com/berita-utama/3818-kasi-kerjasamabilateral-dirjen-haki-qindonesia-a-jepang-patut-tingkatkan-kemampuan-a-pemahaman-hakiq-2012-1800,accessed  After that, however, the performance of the team deteriorated.On 30 April 2009, the USTR was released its 2009 Special 301 Report which elevated Indonesia into the Priority Watch List once again. 54In the Report, the USTR acknowledged that there had been some slight improvement, yet the performance of Indonesia on IPR protection and enforcement was still assessed negatively.One indicator of the USTR assessment is optical disc regulation.Here the USTR evaluated that the regulation had not been implemented effectively as the government of Indonesia still issued licenses for suspect production lines.Moreover, the USTR observed that the government of Indonesia had failed to revoke permanently licences of factories that had already been convicted of committing SLUDF\ DFWLYLWLHV QRU KDG WKH DXWKRULWLHV FRQ¿VFDWHV their equipment and materials which were used to produce pirated optical discs. 55In the 2010, 56 2011 57 and 2012 58 Special 301 Report, Indonesia still remains on the Priority Watch List.
In regard to the performance of Timnas 33+., WKHUH ZDV D VLJQL¿FDQW GLIIHUHQFH LQ SHUception between the USTR and the government of Indonesia.In 2009, Timnas PPHKI formulated the National Policy on Intellectual Property (Kebijakan Nasional Kekayaan Intelektual -KNKI), 59 which had as a target a recommendation that the USTR remove Indonesia from the the Watch List in 2008 to the Off List in 2009.The recommenda-tion was based on the government evaluation of IP infringement cases that had occurred in Indonesia over the previous three years.The percentage of IP infringement cases in Indonesia had dropped from 87 per cent in 2005 to 85 per cent and 84 per cent 60 in 2006 and 2007 respectively. 61However, the USTR assessed the performance of the team as ineffective. 62The USTR in its assessment noted that Timnas PPHKI had undertaken little concrete action to improve the IPR system in Indonesia over the period.In 2008, the USTR had seen IP infringement cases being decided slowly and only small number of cases successfully convicted, and ZLWK VDQFWLRQV OLPLWHG WR OLJKW ¿QHV ZKLFK FRXOG not have a deterrent effect on frequent infringers. 63HVSLWH WKH JRYHUQPHQW ¶V VHOI FRQ¿GHQFH in reality, the development of IP enforcement in ,QGRQHVLD KDG QRW EHHQ VLJQL¿FDQW 7KH QXPEHU percentage of IP infringements that had been reduced by the efforts of Timnas PPHKI for the past three years had been small.The large-scale police raids that had been highly publicised are mainly aimed at end-user piracy of software and optical disc pirate production, 64   There is no explanation whether the percentage of IP infringement cases here is a percentage of the total number of court cases or of the number of cases instigated in Indonesia.

C. Conclusion
Despite many changes and efforts made in Indonesia during the past eleven years, the future of IP law in Indonesia is not really clear.Reforms that have been done so far have not transformed the negative image of IP condition in Indonesia.IP problematic enforcement is hard to resolve since it also involves the improvement of other aspects of legal system in Indonesia, such as the court system and the legal education.To ensure that IP law system works well, all relevant government agencies in Indonesia need to cooperate.The central government must also have serious commitments to improve the IP condition in Indonesia.66 International Intellectual Property Alliance, Op.cit., p. 71.
National Team on the Tackling of Infringements of IPRs (Tim Nasional Penanggulangan Pelanggaran Hak Kekayaan Intelektual -Timnas PPHKI) in 2006 is a positive development.Timnas PPHKI was a task force established based on Presidential Decree No. 4 of 2006 on 27 March 2006.The WDVN IRUFH KDV ¿YH GXWLHV 60