Indonesian copyright law not copyleft-friendly

Mohamad Mova Al 'Afghani, Jakarta

Only history and philosophy can answer why property becomes extended into "creative property" or "intellectual property". It was said that during the ancient Aztec time, only the kings had the right to read the holy text. Thus, knowledge is monopolized only by those on the upper structure of the social class.

But we no longer live in the era of the printing press. One inevitable consequence of cyberspace is the free-flow, reproduction, assimilation and replication of information. Because of the Internet, exchange of information and ideas has occurred at the speed of light, irrespective of location. Unfortunately, the law does not stand behind this information revolution. Instead of supporting the transfer and creation of knowledge for the benefit of mankind, the existing laws on intellectual property purports to hamper and limit creativity by restricting the movement of ideas.

Some people might argue that the stripping of copyrights would undermine an author's moral privileges and entitlement for their work. However, most authors work on their magnum opus not only because of money, but for personal satisfaction. Take for example, Virginia Woolf. She was supposedly suffering a manic- depressive disorder. Most of her work was done during her manic stage, thus sharing her mental experience with others through words. The same is done by great musicians, poets and writers. They do not create solely for the sake of money.

Others consider, however, that without copyright protection, authors would be discouraged to create as no one would pay for it. However, that is not always the case. The first edition of The Lord of the Rings to be published in the United States was a pirated edition. J.R.R. Tolkien, the writer, could not take legal action against the publisher. But then, Tolkien released a new edition with Ballantine, wrapped in a box in which the back cover states that this was the only authorized edition.

Through his fan letters, he added a footnote requesting the recipient to spread the word among Tolkien fans that the pirated edition should be boycotted. Although the pirated edition was said to be cheaper, it quickly lost readers and went out of print. Thus, amid the informal banning effort by Tolkien, readers knew how to respect a work of an author.

There are also people who are afraid to publish their articles online for free and just decide to keep their ideas offline. Nevertheless, a research project by Steve Lawrence, which appeared in Nature, Volume 411, 2001 indicated that articles available online, for free, are more highly cited. Between the years 1990 and 2000, his research found that online articles were cited 4.5 times more often than offline articles. I am convinced that this year, the number could be tripled.

Albeit, the currently mushrooming of "blogs", mailing lists, online diaries and other idea repositories on the internet, because of the copyright law, computer programs, articles and books created by people cannot be easily copied or distributed. Any unauthorized copy of those works is a crime, which entails criminal sanctions and fines.

In the words of GNU founder Richard Stallman, the rules we have now, known as copyright, were established in the age of the printing press, "an inherently centralized method of mass- production copying".

The modern technology for scientific publishing is the World Wide Web. The rule that is best to ensure the maximum dissemination of scientific articles, and knowledge, on the web is a free distribution of articles in non-proprietary formats, with open access for all. It is unfortunate that the existing copyright laws -- that extends its application into the Internet -- prevents people from exercising such non-proprietary format, as every product in writing would automatically be granted a copyright.

Even Bill Gates said that there is no way technically of preventing copyrighted digital material from being replicated and that future attempts to enforce copyrights will become uneconomic, as well as unpopular politically. But for the time being, repealing copyright laws is not a viable thing to do. The middle way is by "bending" the law, without the need of breaking it. This is conducted by using the copyright instrument itself to protect the free access of the product. This method of licensing is popularly known as Copyleft.

Copyleft is a very popular -- and ideology-free -- term which covers various licensing mechanisms which ensures that its copies or derivatives of are accessible for free. GNU-GPL and Q Public License has a "strong" copyright approach, as the copyleft provisions can be more efficiently enforced on all kinds of derived works resulting from the original one. GNU Lesser General Public License and the Mozilla Public License are, on the other hand, "weak" copyleft licenses. Copyleft shall not be confused with Public Domain. Official state documents are generally part of the public domain and contain no restrictions at all. Copyleft is, on the other hand, a license itself.

Copyright laws grant an author an involuntary right of copyright at the time the work is created. Copyleft license used the Copyright law by waiving the some of the author's rights related to the replication, distribution and entitlement of a work. Often, this waiver is accompanied by certain restrictions and conditions, for example, that the copies attribute the author or that the derivatives of the original work shall be available for free.

The Indonesian Copyright Law is not copyleft-friendly. Article 45 of Law No. 19 Year 2002 on Copyright (the "Law") require copyright licenses to be concluded in a written agreement. This would mean that a conventional-on-paper-signature might be necessary under the Law. Interestingly, the Law also extends its application to the internet, by virtue of its Article 1(5). So, there is also no assurance that if this article appears in an online form with an "I agree" button below it, it would satisfy the Law.

Although Article 45(1) of the Copyright Law tends to hamper the free-flow of information by requiring a written license, the preamble of the 1945 Constitution is more on the liberal position by clarifying that the purpose of the State is to improve public welfare, to educate the life of the people and to participate toward the establishment of a world order based on freedom, perpetual peace and social justice.

Rigid requirement under Article 45(1) of the Copyright Law which obliges a written agreement for licensing may potentially hamper the flow of information and be in direct contravention to the objectives of the Constitution.

We are now faced with a rigid legal formality which is outmoded and, if exercised, defeated the object and purpose of the Constitution. Perhaps Article 45(1) needs to be invalidated by the Constitutional Court and the existing Copyright Law should be reviewed by the legislature to make it more copyleft-friendly.

The writer (movanet@yahoo.com) is a lawyer at a Jakarta-based Law Office. He is currently engaged in a free online law journal (http://www.theceli.com) project involving copyleft licensing.