RI under scrutiny on copyrights

RI under scrutiny on copyrights

By T. Sima Gunawan

JAKARTA (JP): Indonesia has been on the United States' copyright Watch List for six years due to rampant intellectual property right violations in the country.

No real action has been taken against Indonesia despite the huge losses it has inflicted on U.S. industries.

But now Indonesia may be targeted for trade sanctions as the Washington D.C.-based International Intellectual Property Alliance (IIPA) has urged the U.S. Trade Representatives to list Indonesia, along with Turkey and Bulgaria, as a "Priority Foreign Country for 1995" -- the highest category for intellectual property right offenders.

IIPA President Eric H. Smith, in the alliance's Feb. 13 report to the USTR, criticized Indonesia for poor law enforcement, saying that the country failed to deal adequately with the rampant problem of book and software piracy.

"The experience of the late 1980s, in which Indonesia virtually wiped out audio piracy, shows that it can enforce its law when it wishes to," he said.

He added that market access problems persisted in the country as well.

The USTR has until April 30 to identify countries targeted for action under the Super 301 trade law. The law allows Washington to impose unilateral sanctions on countries which deny protection for U.S. intellectual property or engage in unfair trade practices.

Established in 1984, the IIPA is an umbrella of eight trade associations of industries which rely on copyrights in the United States. It represents more than 1,500 companies producing and distributing computers, computer software, motion pictures, television programs, home videocassettes, music, records, CDs, audio cassettes, books, publications and journals.

The IIPA said that Bulgaria had exported millions of CDs produced by the state-owned pirate CD plant, while Turkey refused to respond to U.S. requests to amend its poor copyright law.

Two countries, Russia and Brazil, were recommended for the Priority Watch List, which already includes Greece, India, South Korea, Saudi Arabia and the Philippines. Another 17 countries were recommended for this year's Watch List.

The alliance also put 15 countries in its Special Mention category for piracy and market access problems.

U.S. copyrighted companies suffered estimated trade losses totaling US$8.57 billion due to piracy in 43 countries last year. Copyright violations in China and Russia inflicted losses amounting to $800 million each, while U.S. losses due to piracy in Indonesia reached $154 million, according to the IIPA.

Director General of Copyrights, Patent and Trademarks Nico Kansil acknowledged that violations were widespread in the field of intellectual property rights.

"You can't compare Indonesia with the United States, which is an established country. We are different, but we are striving to improve things," Nico said in an interview with The Jakarta Post.

The government's effort to improve regulation of intellectual property rights included the appointment of Nico Kansil as the Director General of Copyrights, Patent and Trademarks at the end of 1988. Intellectual property rights used to be handled by the Director General of Law and Legislations.

Nico said he had 389 employees, but should ideally administer between 500 and 600 employees.

"We need between 75 and 100 patent examiners, but today we only have 37," he said, adding that there was an average of 3,000 patent applications a year.

Earlier this year, the U.S. Information Technology Industry Council complained that their member companies are experiencing inordinate delays in obtaining patents on applications filed in Indonesia, Thailand, India, Malaysia and the Philippines.

The council asked the USTR to put Indonesia, Thailand and India on the Priority Foreign Country List and Malaysia and the Philippines on the Watch List.

Indonesian patent examiners are not only unqualified and incompetent, but also corrupt, the council's president, Rhett B. Dawson, explained in his report to the USTR.

Nico countered, saying his office had gone to great efforts to improve the skill and professionalism of their patent examiners. They are now trained by foreign experts and go on field trips to patent offices in developed countries. A new policy offering patent examiners more chance to build their careers was also issued.

He said he did not hesitate to act against examiners who accepted bribes or lacked discipline. He said several employees had been punished for various violations. Some of them were dismissed, he added.

"We also continue to try to improve the awareness of law enforcers in the field of intellectual property rights," Nico said.

The Copyright, Patent and Trademark Office has organized seminars for the heads of district and high courts. Judges are expected not only to understand the law, but also the consequence of their decisions on the future of Indonesia's economy, Nico said.

Indonesia revised its 1982 Copyright Law in 1987 to provide more legal protection for those who deserve it, and punish violators more harshly.

The government, however, has been criticized for dragging its feet implementing the law. Not many people have been tried under the law, and the few defendants have mostly received light sentences or have been put on probation.

According to the 1987 Copyright Law, anyone found guilty of a copyright violation is subject to a maximum seven-year jail term or a Rp 100 million fine.

The penalty is also stipulated in the 1992 Trademark Law, which replaced the obsolete 1961 act.

The Surabaya District Court last year made a controversial decision on the piracy of the 555 brand of cigarettes. The judges said that the defendant was proven to have hijacked the trademark but they did not punish him on the grounds that the piracy had taken place prior to the enactment of the 1992 Trademark Law. Quoting article 1 (2) of the Criminal Law (KUHP), the judges said that if any changes stipulated under the new law were to be enforced, they should be those benefiting the defendant.

The 1961 Trademark Law did not stipulate any criminal punishment for violators.

Minister/State Secretary Moerdiono announced Wednesday the government would step up its campaign against violations of intellectual property rights, mount raids to curb piracy and give harsher sentences to the violators.

Moerdiono is the head of a special team established by President Soeharto in 1986 to deal with problems relating to the legislations on intellectual property rights.

The team is now working to revise the copyright law, as well as the 1992 Trademark Law and the 1989 Patent Law, with the help of the World Intellectual Property Organization. The revisions, which are scheduled to be completed this year, will be followed by new laws on industrial designs, integrated circuits and trade secrets.

The revisions and drafts of the new laws will be in line with the Trade Related Aspects of Intellectual Property Rights under the new General Agreement on Tariffs and Trade (GATT), which took effect on Jan. 1, 1995. Indonesia and other developing countries have five years to adjust to the requirements.

The amended laws will provide not only copyrights for composers, but also for performers, producers and broadcasters. This is not covered by the current law. It will also regulate rental rights for movies.

Proper legislation is required to safeguard intellectual property rights, but more important is its implementation. Even though Indonesia still has five years to adjust to GATT requirements, the government shouldn't wait until 2000 to adequately enforce the existing laws.