Indonesian copyright law not copyleft-friendly

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.