Is copyright enforcement finally gaining momentum in Indonesia?

January 26 2016

Indonesia has an unwelcome reputation as a haven for copyright piracy. But Prudence Jahja and Andrew Diamond say recent initiatives promise to change that

1minute read

For decades, Indonesia’s booming population has enjoyed access to pirated books, CDs, DVDs, computer software, music and cable TV. The scale of copyright infringement in the country has contributed to it being on the USTR Watch List or Priority Watch List every year since 1989, and prompted a group of local artists and musicians to threaten to report the communications and information minister. However, over the past year things have begun to change, with a new Copyright Act, new presidential administration, the Creative Economy Agency and some visible enforcement efforts. Moreover, July 2015 saw two joint regulations on takedown procedures for infringing content online, which have been used to shut down film and music sharing websites. It is now important to build on these recent initiatives to raise awareness of copyright and its role in promoting trade.

Place the words "Indonesia" and "copyright enforcement" together in close proximity and you are often met with raised eyebrows, looks of incredulity and general puzzlement. And for too long, rightly so. For decades, the country's booming population – which is now the fourth largest in the world – has enjoyed almost unfettered access to a wide range of infringing content, such as copied books, pirated CDs/DVDs and computer software, illegally downloaded songs, and illegal cable.

But change might actually be afoot in southeast Asia's biggest economy. A string of recent positive developments has threatened to create a sense of momentum in the fight against copyright infringing material. To some, the events described below may seem tame, unfinished or perhaps not even worthy of mention. However, to fully understand why they have begun to create the first semblances of optimism, it is important to briefly focus on the recent copyright situation in Indonesia.

The scale of the problem

The easiest way to sum up Indonesia's historical record in this regard is to simply note that it has appeared on either the Watch List or Priority Watch List every single year since the US Trade Representative (USTR) began publishing its Special 301 Report in 1989. More recently, in both the 2014 and 2015 Reports, Indonesia was listed on the Priority Watch List, a designation which "indicates that particular problems exist in that country with respect to IPR protection, enforcement, or market access for persons relying on IPR" and is reserved for "those countries that have the most onerous or egregious acts, policies, or practices…."

In support of this designation, the 2014 Report noted its "concern that Indonesia's IPR enforcement efforts…have not been effective in addressing rampant piracy and counterfeiting, reflected in growing piracy over the Internet…." The 2015 Report unsurprisingly used similar language.

In 2011, a group of prominent Indonesian artists and musicians threatened to report then- Communications and Information Minister Tifatul Sembiring for failing to adequately deal with music and film copyright violations, particularly in the online space. By some accounts, on average each Indonesian citizen illegally downloads six songs a day – a truly staggering number when it is considered that the population is about 250 million. Accordingly, it has been estimated by the Indonesian Association of Artists, Singers, Composers and Recording Businessmen (PAPPRI) that approximately 95.7% of all Indonesian music sales since 2007 have been purchases of pirated content.

Despite these statistics, the Ministry's enthusiasm for blocking websites containing any "pornographic content" (including Vimeo, Reddit and YouTube for a time) apparently did not extend to those illegally hosting downloadable music and nothing was done, as usual.

Things begin to change

Starting around October 2014, things began to change. First, long in the works, a new Copyright Act (No 28/2014) was passed and enacted into law. While not perfect, the new Act serves as a considerable upgrade over the previous law by containing several new useful provisions, such as extending the period of protection from 50 to 70 years, creating liability for landlords of properties that sell copyright infringing goods, and increasing the range of criminal penalties that can be imposed on those who sell infringing content.

Second, a new presidential administration started in October 2014, led by President Joko Widodo (commonly referred to as Jokowi), who as governor of Jakarta introduced the concept of landlord liability in an effort to pressure malls and markets to no longer turn a blind eye to the sale of counterfeit and infringing goods. While the follow up of this initiative was limited during his time as governor, as president Jokowi has stated repeatedly that his administration is focused on promoting foreign investment in Indonesia and boosting the country's creative economy, with stronger protection of IP rights underpinning both of those goals.

To spearhead these efforts, President Jokowi announced the creation of the Creative Economy Agency (Bekraf) in January 2015, spinning it off from the previously dual-purposed Ministry of Tourism and Creative Economy. Designed to help nurture Indonesia's creative economy into becoming a key contributor to the country's GDP, the Agency has been allocated an operating budget of approximately $80 million for 2016, which is fairly substantial by Indonesian government standards.

The Agency has announced plans to provide public education programmes about intellectual property and to specifically target online piracy, as well as setting up an Anti-Piracy Task Force to handle and follow up on complaints from copyright holders. It is also working on developing a software system for use on various websites that are known to facilitate illegal downloads which triggers a warning notice to the user advising them on possible legal consequences and providing links where legal content can be accessed.

While it is still early days for the Agency, it recently provided a glimpse of what it may be capable of in the future by working with local industry groups and the Ministry of Communication and Informatics to block access to 44 music and film sharing sites that were hosting pirated content. Such successful efforts in the online space are a welcome change and fit nicely with President Jokowi's comments regarding the need to combat piracy offline as well.

In May 2015, the president openly challenged the police to arrest and shutdown what he called the "DVD Mafia", those shadowy businesses that profit from the widespread sale of pirated films and music. Comparing this situation to another piracy threat, he noted that his administration had to blow up a number of illegal fishing vessels first so that others would take notice and start to think twice about illegally fishing in Indonesian waters. President Jokowi said: "It's like they are competing with each other to see who is stronger and who will get bored first. Is it law enforcement or the pirates? At least law enforcement must pressure the pirates so that they are as little as possible."

Indonesia President Joko Widodo introduced the concept of landlord liability while governor of Jakarta

The response was swift, as the following weeks saw various law enforcement agencies raid a number of bootleg DVD producing factories in and around Jakarta, including one that could produce up to 6,000 discs a day, as well as a number of stalls both inside and outside shopping centres and malls. Unfortunately, the pace of the raids has since slowed and they failed to include many of the most notorious locations for pirated content, including Harco Glodok, which has been described by the Motion Picture Association of America as "the largest and most active in Indonesia for counterfeit and pirated optical discs of all types", while the USTR in a March 2015 report urged "the Indonesian Government to launch a sustained, coordinated and effective effort to tackle widespread counterfeiting and piracy at Harco Glodok and elsewhere".

Indeed, a true test of the Indonesian government's newfound commitment to copyright enforcement will be in how it addresses the numerous physical markets around the country and especially in the capital, Jakarta, where infringing content is sold openly. Because of the complex smuggling and underworld elements that exist in many of these markets, it is in the online space that there is the greatest capacity for quick and effective solutions to the rampant illegal downloading of protected content in Indonesia.

That is why it is a very welcome change from past practice that the Ministry of Law and Human Rights and the Ministry of Communication and Informatics issued joint regulations (No 14/2015 and No 26/2015) in July 2015 on takedown procedures for infringing content online. Under other previously issued IP laws, the lack of corresponding regulations created very real and problematic gaps in enforcement (for example, absence of regulations on protection of well-known trade marks for dissimilar goods). Here, the joint regulations correspond to Article 56(2) of the Copyright Act and together they allow the complainant (the author, copyright owner, local collecting societies, etc) or other authorised party to report infringing content to the Indonesian IP Office (DGIP), which will verify the information and then send it to the Ministry of Communication and Informatics, which has the authority (and technical capability) to block the infringing website and/or content in question.

This joint regulation was used as the mechanism to shut down the 44 film and music sharing websites mentioned previously, which included notorious torrent sites such as Thepiratebay.se and Isohunt.to. The key to this new system is that Indonesia's copyright protection regime has shifted to a complaint-based system whereas before no complaint from the rights holders was required for authorities to theoretically take action. In the case of the 44 websites, local industry groups are understood to have filed the now-required complaints with the government. Going forward, rights holders will have the responsibility to provide authorities with the information necessary for them to act, which may or may not complicate the process.

Much left to do

What is clear is that despite these recent improvements, there is still much left to do. Copyright remains a tenuous IP right in Indonesia and one of which a large segment of the population is not yet sufficiently aware. Further efforts are clearly needed to spread awareness regarding the key role that protecting creativity can have in encouraging local artists and boosting the creative economy in Indonesia, as well as promoting foreign investment and increased trade.

Similarly, raids of physical markets and takedowns of infringing online content will have to continue, if not increase in frequency. Assuming Indonesia does join the Trans-Pacific Partnership (TPP) by 2019 as the Jokowi administration recently pledged, it will have a tremendous amount of work to do across all spectrums of IP law in order to bring these rights into compliance with international and TPP standards.

One worry is that after the recent flurry of positive activity, this focus on copyright will be lost and copyright protection in Indonesia will once again return to being merely theoretical in nature.

But for now at least there is something positive and substantial to talk about. And while it could be just another false start, it could also be the beginning of a very real movement to finally make copyright protection a reality in Indonesia. The fact this possibility is even being raised perhaps shows that the progress has already started.