Creative Works in the Public Sector: Core Problematika and Directions for Legal Reform
Lately, we have witnessed a deeply concerning and ironic incident in the enforcement of law in Indonesia. A creative worker/videographer in Karo is facing charges from the public prosecutor for the act of “mark-up” on services for a village video project, with a demand of 2 (two) years in prison.
In the indictment, the public prosecutor states that the creative worker is suspected of causing state losses through the act of “mark-up” on his work, which involves assigning economic value to creative ideas, cutting, editing, and dubbing—work that should supposedly have no economic value and not be compensated at all.
From this legal incident, it is intriguing to re-examine the reality of the law in our beloved country regarding the enforcement of law on creative works in the public sector.
Creative Works as Intellectual Activities
Discussing creative works inevitably involves a process of intellectual activities. The process of intellectual activities is a series of endeavours that heavily emphasise human intellectual capabilities in producing a work.
Typically, it begins with a creative idea, followed by intellectual activities, resulting in a creative work, which then receives intellectual property protection, and ultimately, the creative work can be commercialised to derive the economic benefits it contains.
Considering this, it is clear that creative works are human intellectual products not only produced through intellectual activities but also closely tied to the talent, skills, and creative abilities of the creative worker. Here, creative works in reality do not always emphasise tangible product forms but greatly depend on intangible intellectual processes, as well as the skills and talents of the creator themselves.
Therefore, it is not surprising that creative works are not easily produced by someone who, besides lacking strong intellectual capabilities, is also unsupported by adequate talent, skills, and creative abilities.
This is the relevance of why creative works have always been important to receive appreciation, recognition, and even legal protection through the legal regime known as intellectual property rights.
Creative Works in the Public Sector
Creative works as human intellectual products are essentially not only produced in the private environment but also extensively in the public sector. These various creative works are usually produced by civil servants, consultants, or through collaborations with private parties. The purpose of these creative works is: (1) the provision of public services; (2) the management of government programmes; or (3) the development of public policies. Products of creative works in the public sector can include public service applications (e-government), branding for government programmes, public service advertisement videos, and many others.
Creative works in the public sector have several characteristics that differ from those in the private sector, such as being oriented towards public interest; based on state budgets; multi-actor and collaborative; and often not profit-oriented.
From these characteristics of creative works in the public sector, there are actually many related legal dimensions. These legal dimensions include administrative law. In the administrative law dimension, creative works are closely related to aspects of legality, accountability, and proportionality.
Other legal dimensions include intellectual property law, procurement of goods and/or services, and criminal law. The intellectual property law dimension is closely related to legal protection for creative works in the public sector; this protection includes issues regarding the ownership status of the intellectual property itself—whether the creative work is owned by the individual or the state. The procurement of goods and/or services dimension is generally linked to consultancy services and system development.
In this context, there is a challenge in quantitatively determining creative outputs, while another legal dimension is criminal law. In the criminal law dimension, the emerging legal issues involve the failure to produce creative works deemed to cause harm to the state. This is actually closely related to interpreting administrative errors versus criminal acts themselves.
Three Core Problematika
Discussing creative works in the public sector in Indonesia today reveals three core problematika: substantive law, legal structure, and legal culture. These three core problematika can be explained as follows:
First, there is still no certainty regarding the substance of public law, including criminal law, on clear boundaries between innovation risks and criminal acts. In practice, this encourages law enforcement officials to make broad interpretations of phrases such as “abuse of authority” and “state financial losses”; then, the absence of “safe harbour” norms for creative works in the public sector that release creative workers from criminal liability, which ultimately becomes a loophole for law enforcement officials to apply criminal law generally, without considering the specific characteristics of creative works produced by creative workers.
Second, from the legal structure aspect, there is still limited understanding and knowledge among law enforcement apparatus regarding creative works in the public sector themselves. They have very minimal understanding of creative works in the public sector, and this is worsened by