Indonesian copyright law not copyleft-friendly<\/p>\n
Mohamad Mova Al 'Afghani, Jakarta<\/p>\n
Only history and philosophy can answer why property becomes
\nextended into \"creative property\" or \"intellectual property\". It
\nwas said that during the ancient Aztec time, only the kings had
\nthe right to read the holy text. Thus, knowledge is monopolized
\nonly by those on the upper structure of the social class.<\/p>\n
But we no longer live in the era of the printing press. One
\ninevitable consequence of cyberspace is the free-flow,
\nreproduction, assimilation and replication of information.
\nBecause of the Internet, exchange of information and ideas has
\noccurred at the speed of light, irrespective of location.
\nUnfortunately, the law does not stand behind this information
\nrevolution. Instead of supporting the transfer and creation of
\nknowledge for the benefit of mankind, the existing laws on
\nintellectual property purports to hamper and limit creativity by
\nrestricting the movement of ideas.<\/p>\n
Some people might argue that the stripping of copyrights would
\nundermine an author's moral privileges and entitlement for their
\nwork. However, most authors work on their magnum opus not only
\nbecause of money, but for personal satisfaction. Take for
\nexample, Virginia Woolf. She was supposedly suffering a manic-
\ndepressive disorder. Most of her work was done during her manic
\nstage, thus sharing her mental experience with others through
\nwords. The same is done by great musicians, poets and writers.
\nThey do not create solely for the sake of money.<\/p>\n
Others consider, however, that without copyright protection,
\nauthors would be discouraged to create as no one would pay for
\nit. However, that is not always the case. The first edition of
\nThe Lord of the Rings to be published in the United States was a
\npirated edition. J.R.R. Tolkien, the writer, could not take legal
\naction against the publisher. But then, Tolkien released a new
\nedition with Ballantine, wrapped in a box in which the back cover
\nstates that this was the only authorized edition.<\/p>\n
Through his fan letters, he added a footnote requesting the
\nrecipient to spread the word among Tolkien fans that the pirated
\nedition should be boycotted. Although the pirated edition was
\nsaid to be cheaper, it quickly lost readers and went out of
\nprint. Thus, amid the informal banning effort by Tolkien, readers
\nknew how to respect a work of an author.<\/p>\n
There are also people who are afraid to publish their articles
\nonline for free and just decide to keep their ideas offline.
\nNevertheless, a research project by Steve Lawrence, which
\nappeared in Nature, Volume 411, 2001 indicated that articles
\navailable online, for free, are more highly cited. Between the
\nyears 1990 and 2000, his research found that online articles were
\ncited 4.5 times more often than offline articles. I am convinced
\nthat this year, the number could be tripled.<\/p>\n
Albeit, the currently mushrooming of \"blogs\", mailing lists,
\nonline diaries and other idea repositories on the internet,
\nbecause of the copyright law, computer programs, articles and
\nbooks created by people cannot be easily copied or distributed.
\nAny unauthorized copy of those works is a crime, which entails
\ncriminal sanctions and fines.<\/p>\n
In the words of GNU founder Richard Stallman, the rules we
\nhave now, known as copyright, were established in the age of the
\nprinting press, \"an inherently centralized method of mass-
\nproduction copying\".<\/p>\n
The modern technology for scientific publishing is the World
\nWide Web. The rule that is best to ensure the maximum
\ndissemination of scientific articles, and knowledge, on the web
\nis a free distribution of articles in non-proprietary formats,
\nwith open access for all. It is unfortunate that the existing
\ncopyright laws -- that extends its application into the Internet
\n-- prevents people from exercising such non-proprietary format,
\nas every product in writing would automatically be granted a
\ncopyright.<\/p>\n
Even Bill Gates said that there is no way technically of
\npreventing copyrighted digital material from being replicated and
\nthat future attempts to enforce copyrights will become
\nuneconomic, as well as unpopular politically. But for the time
\nbeing, repealing copyright laws is not a viable thing to do. The
\nmiddle way is by \"bending\" the law, without the need of breaking
\nit. This is conducted by using the copyright instrument itself to
\nprotect the free access of the product. This method of licensing
\nis popularly known as Copyleft.<\/p>\n
Copyleft is a very popular -- and ideology-free -- term which
\ncovers various licensing mechanisms which ensures that its copies
\nor derivatives of are accessible for free. GNU-GPL and Q Public
\nLicense has a \"strong\" copyright approach, as the copyleft
\nprovisions can be more efficiently enforced on all kinds of
\nderived works resulting from the original one. GNU Lesser General
\nPublic License and the Mozilla Public License are, on the other
\nhand, \"weak\" copyleft licenses. Copyleft shall not be confused
\nwith Public Domain. Official state documents are generally part
\nof the public domain and contain no restrictions at all. Copyleft
\nis, on the other hand, a license itself.<\/p>\n
Copyright laws grant an author an involuntary right of
\ncopyright at the time the work is created. Copyleft license used
\nthe Copyright law by waiving the some of the author's rights
\nrelated to the replication, distribution and entitlement of a
\nwork. Often, this waiver is accompanied by certain restrictions
\nand conditions, for example, that the copies attribute the author
\nor that the derivatives of the original work shall be available
\nfor free.<\/p>\n
The Indonesian Copyright Law is not copyleft-friendly. Article
\n45 of Law No. 19 Year 2002 on Copyright (the \"Law\") require
\ncopyright licenses to be concluded in a written agreement. This
\nwould mean that a conventional-on-paper-signature might be
\nnecessary under the Law. Interestingly, the Law also extends its
\napplication to the internet, by virtue of its Article 1(5). So,
\nthere is also no assurance that if this article appears in an
\nonline form with an \"I agree\" button below it, it would satisfy
\nthe Law.<\/p>\n
Although Article 45(1) of the Copyright Law tends to hamper
\nthe free-flow of information by requiring a written license, the
\npreamble of the 1945 Constitution is more on the liberal position
\nby clarifying that the purpose of the State is to improve public
\nwelfare, to educate the life of the people and to participate
\ntoward the establishment of a world order based on freedom,
\nperpetual peace and social justice.<\/p>\n
Rigid requirement under Article 45(1) of the Copyright Law
\nwhich obliges a written agreement for licensing may potentially
\nhamper the flow of information and be in direct contravention to
\nthe objectives of the Constitution.<\/p>\n
We are now faced with a rigid legal formality which is
\noutmoded and, if exercised, defeated the object and purpose of
\nthe Constitution. Perhaps Article 45(1) needs to be invalidated
\nby the Constitutional Court and the existing Copyright Law should
\nbe reviewed by the legislature to make it more copyleft-friendly.<\/p>\n
The writer (movanet@yahoo.com) is a lawyer at a Jakarta-based
\nLaw Office. He is currently engaged in a free online law journal
\n(http:\/\/www.theceli.com) project involving copyleft licensing.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/indonesian-copyright-law-not-copyleft-friendly-1447893297",
"image": ""
},
"sponsor": "Okusi Associates",
"sponsor_url": "https:\/\/okusiassociates.com"
}