Can Foreigners Sue for Copyright against Indonesians?

Can Foreigners Sue for Copyright against Indonesians?

As the digital world connects every user closer and up to date, there is a possibility of a foreigner becoming entangled in copyright violation.

According to Naufal Arie Taufik Nurrahman from DNT Lawyers Intern, “Copyright can be sued by foreign citizens.”

As stated in Presidential Decree Number 18 of 1997 concerning the Ratification of the Berne Convention for the Protection of Literary and Artistic Works (Presidential Decree 18/1997), Article 5, Paragraphs (1) and (2) of the Berne Convention explain that:

“Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

“The enjoyment and exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.

“Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed,” continued Nurrahman.

In other words, a work originating from one of the countries participating in the agreement, namely the creation of a citizen of the member countries or a work that was first published in one of the countries, must receive the same legal protection in the other country, as the creation of a citizen of their own country.

Furthermore, copyright itself in Indonesia is regulated in Law Number 28 of 2014 concerning Copyright (UU HC). The foreigner can be categorised as a creator, and their work can be categorised as a creation.

The definition of copyright, author, and creation is contained in Article 1, Numbers 1, 2, and 3 of the HC Law:

Copyright is the exclusive right of the creator, which arises automatically based on the declarative principle after a work is realised in real form without reducing restrictions in accordance with the provisions of statutory regulations.

A creator is a person or several people who individually or together produce a creation that is unique and personal.

Creation is any creative work in the fields of science, art, and literature that is produced based on inspiration, ability, thought, imagination, dexterity, skill, or expertise expressed in concrete form.

Article 64, Paragraph (2) of the HC Law confirms that recording works and related rights products is not a requirement for obtaining copyright and related rights. This means that even without foreigners (creators) registering creations, Indonesia is obliged to provide the same legal protection as its citizens through the HC Law. Meanwhile, if a foreigner wants to file a copyright lawsuit, they can do so at the Commercial Court as stated in Article 95, Paragraph (1) of the HC Law.

In short, foreigners can sue Indonesian citizens who violate their copyright because Indonesia has ratified the Berne Convention through Presidential Decree 18/1997.


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