Making Creative Commons Licensing Work In Indonesia

Alifia Qonita SudhartoHilman Fathoni

Below is an update from Creative Commons Indonesia, who recently worked with their national copyright office on proposed changes to law that will secure the ability of creators to use CC and other open licenses there.


copyrightwrench

In late 2014, Indonesia amended its copyright law to add several new provisions, including changes having to do with database rights, addressing copyright as an object in a collateral agreement, and making license recordation mandatory. The latter is something that could potentially be an issue with regard to the operation of Creative Commons licenses, as well as other open license in Indonesia.

“License recordation” means that licensors (even those publishing their works under Creative Commons) must report their licenses with the Indonesian Copyright Office. If a licensor does not comply with the requirement, the license that they applied on their work will not have any legal effect, and will not be enforceable against third parties. This provision is stated in Article 83 of Law Number 28 year 2014:

  1. Every license agreements has to be recorded by the Ministry in the general list of Copyright License Agreement with payable fees;
  2. License agreements which are not in compliance with the license agreement criteria according to Article 82 cannot be included in the general list of Copyright License Agreement;
  3. If a license agreement is not recorded in the general list of Copyright License Agreement, such unrecorded license agreement will not have any legal effects, and thus not enforceable against third parties;
  4. More detailed provisions on license agreement recordal will be regulated under a Government Regulation.

The Creative Commons Indonesia team realized that this provision could possibly complicate the applicability of open licenses under the copyright law. We know that creators publishing under CC do it because the licenses provide an easy and standard way to share creativity with the public, while at least retaining the right to be attributed as the author of the work. The updated Indonesian law would create an artificial barrier to sharing under CC, because it would require licensors to take an additional step in letting the Copyright Office know which of their works are under an open license.

We began to explore the possibility of requesting an exception to the rule for Creative Commons’ licensed works. When we found out that the discussion regarding the regulation had started, we visited the Indonesian Copyright Office. Our aim was to exclude open licenses from the license recordal mandate, ensuring the operation of Creative Commons and other open licenses as they are intended.

On May 23, 2016, we met with the Indonesian Copyright Office, where we were informed that there has been a discussion on the license recordal mandate by the drafting committee, and that open licenses would not be excluded from the license recordal obligation. On September 21, we had another meeting with the Office, where we were asked to provide a written explanation of the operation of open licensing, along with examples of CC licensed materials.

We returned a week later with a draft of our explanation and asked the Copyright Office for feedback and questions. The next day we filed the written request with the Office, and also gathered support from other Creative Commons affiliates by drafting a letter, in case our petition was rejected.. We planned to send out the letter of support from CC affiliates to the drafting committee as our backup plan..

However, on November 1, the Copyright Office informed us that Creative Commons licenses and other open licenses in use in Indonesia will be excluded from the license recordal mandate. The drafting committee agreed to exclude those from the regulation because they understand that open licenses are often used in for non-profit purposes. This decision will be included in the preamble of the government regulation, which is still in the drafting process, but will be finally enacted in December 2016 or January 2017.


Screwdriver And Wrench by To Uyen, CC BY 3.0 US
Copyright by Marek PolakovicCC BY 3.0 US