Copyright Protection of The Protection of

In contrast, the Copyright Act 1968 Cth 31 states that copyright arises immediately the creator gives his or her object expression by committing it to writing, image or some other form capable of reproduction. It is important to the artist that to get the IPR, they sould make their idea real in a tangible form that can be sense, seen, and hear. LJ Taylor Rachmadi Usman was quoted as saying in his book Law of Intellectual Property Rights Protection and Legal Dimensions in Indonesia that protected Copyright is the expression of an idea, so not protect the idea itself. Where this means that protected Copyright is already in a tangible form as a creation, not still an idea. 32 TRIPs Agreement also said that Copyright protection include expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. It can be seen from the wording of Article 9, Paragraph 2 TRIPS Agreement said: Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. Moreover, the Berne Convention also implies similar things that work in the fields of science, art and culture are protected when it is already in the form of expression is through the provision of Article 2 Paragraph 1 of its namely: The expression literary and artistic works ....... Wayang kulit as the cultural heritage, both has material tangible and immaterial intangible artistic values. The tangible part can be seen in its material tools that use in the performance like wayang the puppets, screen, the music instrument, and others. The intangible part can be seen in its component based on the artist act that include the dalang improvisations in Kawi Dalang acts, the story of the performance, the poetry, the song, the music melody which accompany the performance, the jokes, and many others. Folklore or Traditional Cultural Expression TCE is anything that is considered common property or a community or a society, and the creation of anonymous. UNESCO has included wayang as a Master Piece of Oral and Intangible Heritage of Humanity as a world cultural heritage from Indonesia, and it was declared after Convention ForThe Safeguarding of Intangible Cultural Heritage on November 7 th , 2003 33 , that valid in entry force of 2006. Cultures or folklore which previously entered into the convention, including wayang kulit as the Master Piece of Oral and Intangible Heritage of Humanity incorporated into the International Convention for the Safeguarding of Intangible Cultural Heritage . Wayang Kulit registered as a representative list in Intangible Cultural Heritage ICH. This convention has been ratified by Indonesia in the form of Presidents Decree Peraturan Presiden No. 78 of 2007 34 . Actually part of wayang kulit that is categorized as intangible folklore intangible cultural heritage 35 by the UNESCO is fall within the scope of Article 38 1 of Indonesian Law No. 28 of 2014 concerning Traditional Cultural Expression. This Article basically states that the copyright of this creation is held by the country. Folklore is closely 31 Laws passed by the Commonwealth of Australia are denoted by the abbreviation Cth. State and Territory laws are denoted by the relevant abbreviations in the title such as NT for the Northern Territory. 32 Rachmadi Usman, La w on Intellectual Property Rights: The Protection and Its La w Dimension in Indonesia Hukum Hak Atas Kekayaan Intelektual: Perlindungan dan Dimensi Hukumnya di Indonesia,Bandung: Alumni, 2003 p.121. 33 UNESCO, Intangible Culture Heritage , www.unesco.orgcultureichenconvention, Accessed on 5 December 2015. 34 It is About Ratification of Convention For Safeguarding Of The Intagible Cultural Heritage. 35 According to Article 2 paragraph 1 ICH, the characteristics of the object preservation of intangible heritages are: 1 Transmitted or passed from generation to generation; 2 Constantly updated by a community or group as they respond to their environment, their interaction with nature and history; and 3 Give them a sense of identity and continuity, thus promoting respect for cultural diversity as well and human creativity. All of the characteristics mentioned above are exist in the traditional wa yang kulit , therefore fulfill the requirement of ICH when nominated it. related to indigenous peoples such as the creation of literary and artistic works such as legends, dances, ceremonies, and so is the legacy of intergenerational an indigenous community. However, for the new innovation and creation of a wayang kulit character tangible part, it is fall under the protection of Article 40 1 of Indonesian Law No. 28 of 2014. Article 40 of Law No. 28 of 2014 is basically regulates types of creations protected under Indonesian copyright law. Furthermore, the protection of wayang kulit can be seen specifically under Article 40 1 letter e where it states pewayangan or puppet or wayang kulit in this case is one of the creations protected under this Law. The main difference between wayang kulit protected under Article 38 and 40 of Indonesian Law No. 28 of 2014 is that for wayang kulit that is fall under Article 38, the copyright is held by the country Indonesia meanwhile for the new creation of wayang kulit character that fall under Article 40 1 e, the copyright is held by individual. This article deals with wayang kulit that fall under the protection of Article 40 1 of Indonesian Law No. 28 of 2014, which is the new wayang kulit character. With regard to the creativity process, a source of inspiration in the creation of works of art is very broad and free, almost anything that can be seen and thought to have the potential and charm to been turned into works of art. Some artists want to be recognized existence and his works, by displaying the character, different styles in his work reveals. Dalangs usually get inspirations from the works of the earlier artists. For example the inspiration in Wayang Arja that inspiration comes from one kind of performace that exist in Bali, the Arja drama, transforming into wayang form by dalang Made Sija in 1976. It has an intelectual values that must be the right for the creator as an appreciation both in economic and social values for their masterpiece. But sometimes the dalang like indifference to its own intellectual rights. They are promoting a sense of kinship and mutual support between artists. They assume that the art belongs to the people. Custom base background is inherent in traditional Balinese as an communal live. They believe that community shape them into neighborhood artists who live, grow, and evolve from the community, by the community and for the community. They assume that all they have and create not merely his own, but belongs to the community. So that the people of Bali is famous for their arts and community bound that are closely intertwined with each other. It is a tradition concept that has been inheritable across generation and time which construct the Balinese Arts. Beside it is a good concept, but it‟s also invite problems when connected to both economic and business interest. For example, if other people copying a new wayang kulit character without permission from the creator for economic purposes by using it in their performances or selling it as souvenir. For Examples of new wayang kulit character, we can assess from one performance of Pedalangan Department at the Faculty of Performing Art of ISI Denpasar. It is a Wayang Sejarah Kamardikan 36 that created by I Putu Rekayasa, the bachelor student which just graduate from his study in ISI Denpasar on July 28 th , 2015. He makes a new kind of wayang performance that the focus of the story is the heroic fighters in the nation gained independence against colonialism occupation. On this performance, he used the story of Banjar War in 1868 in Buleng Regency. On that time, the Banjar Recident was lead by Ida Made Rai. As a retainer of Banjar, he was strongly oppose oppression that carried out by the Netherlands. Backed by people of Banjar, he was joining forces to defend Banjar District from attacks that would be carried out by the Netherlands to Banjar. Dutch did not 36 It base from his vision to make wayang performances as media to learn about the nation independents patriotic history Sejarah Kema rdikan . See also: Putu Rekayasa, “Scripts of Kemardikan Pakeliran History: Banjar War”[ Skrip Karya Pakeliran Seja rah Kemardikan: P erang Banjar ], Denpasar: Fakultas Seni Pertunjukan, ISI Denpasar, 2015. remain silent, with the help of Regent I Gusti Ngurah Ketut Jelantik, Banjar District in an all-out attacking that time. In the performance, Putu Rekayasa tried to combine the wayang kulit and human theater in one concept of performance. He also used the wayang puppets based on the characters that were on the story. He used more than 15 puppets on his performance. What made it so unique and different from other wayang is, he used the Dutch regents character based on the story. They are Major Heemskerk and Lieutenant Wig Steigman characters as the Dutch employers in Buleleng . Picture 1. Major Heemskerk and Lieutenant Wig Steigman characters as the dutch employers in Buleleng in a meeting with Patih adviser of the king Liarta and Regent I Gusti Ngurah Ketut Jelantik, the King of Buleleng. From this example, the creation of wayang can be protected under Article 40 1 e of the Indonesian Law No.28 of 2014. According to Article 1, Paragraph 1, the wayang Belanda Dutch puppets of Major Heemskerk and Lieutenant Wig Steigman are exclusive creations of their creator, Dalang Putu Rekayasa, that arise automatically based on the declarative principle following creation of the object. The wayang Belanda Dutch puppets created by Dalang Putu Rekayasas are automatically protected by this law. The puppets have been embodied in a tangible form – a video recording of the last exam in Faculty of Performing Art of ISI Denpasar. Furthermore, Copyright protection regime generally knows the automatically protection system. Where the system confirms that since the fixation process is completed, since that time the Creator enjoys legal protection, without the need for formalities such as registration or enrollment. 37 This protection system can be seen from the provisions of Article 1 Paragraph 1 Indonesian Law No. 28 of 2014 specifies that Copyright is the exclusive right of an Author or the Copyright Holder to publish or reproduce his work, which arises automatically after a creation born without reducing restrictions according to the applicable laws and regulations. Thus, the creation of creative works of pedalangan as well as automatic protection after such a work is born within the meaning of the idea already set forth in the obvious form, was announced, and original. Therefore, if one copying those new creations of wayang kulit character for business purposes without any permission from the creator, it can be seen as copyright infringement under Indonesian Law No. 28 of 2014. It should be noted that the creator has what so called as moral right and economic right 38 . However, there are 37 Agus Sardjono, Copyright La w in Graphic Design Hak Cipta Dalam desain Grafis , Jakarta: Yelow Dot Publishing, 2008 p. 19. 38 Article 4 of Indonesian Law No 28 of 2014. provisions that deal with the limitation of what is called as a copyright infringement under Article 43-50 of Indonesian Law No. 28 of 2014. Although the Copyright protection system in Indonesia is Automatic protection system as described previously in Indonesian Law No. 28 of 2014, however this law provides provision concerning registration of a creation. It can be found in Article 64 1 of Indonesian Law No. 28 of 2014 where it states that the Directorate-General administer the registration Creation and recorded in the Register of Directorate General of Intellectual Property Dirjen HAKI . Basically towards Creation, although registration is not mandatory, for the sake of proving that there is a dispute later on should Copyright registered to the Dirjen HAKI . 39 Thus registration here is as a way to facilitate future verification process if there is a dispute one day. Registration is not a requirement, but it becomes important when there is a dispute in one day. This is in line with the provisions of Article 642 of Indonesian Law No. 28 of 2014 40 and Article 31 Indonesian Law No. 28 of 2014. Regarding the validity of copyright and related rights on works of pedalangan artistic works, it is explained in Chapter IX about Duration of Copyright an Related Rights, Expiration Copyright, paragraph One, Article 57 in Paragraph 1 said that the moral rights of the Creator as referred to in Article 5 paragraph 1 letter a, b, and e included wayang valid indefinitely. In Article 58 Paragraph 1 explained that validity period of Economic Rights of wayang in point e, valid for the life of the Creator and continued for 70 seventy years after his death, starting from January 1 next year. In Paragraph 2 explained that when an application is referred to in subsection 1 is owned by two 2 or more persons, protection of Copyright is valid for life Creator who died most recently and lasts for 70 seventy years thereafter, commencing 1 January next year. In Paragraph 3 explained that the Protection copyright to a work referred to in paragraph 1 and paragraph 2 which are owned or held by the legal entity shall be valid for 50 fifty years since the announcement was first made. For that time, the Copy Rights of wayang Belanda are belongs to Putu Rekayasa. Any kind of rights include economic and social rights are belongs to Putu Rekayasa. While there is no direct Australian equivalent of the protections of wayang kulit, there are a number of significant similarities between the respective copyright regimes of Indonesia and Australia. In Australia, the legal protection of intellectual property is grounded in the intangible personal right to be recognized for, and gain for a finite period, the commercial advantage arising from „products of the human intellect‟. 41 The statutory intellectual property frameworks supporting this principle are designed to encourage and protect the product of individual or joint labour and endeavor, not necessarily creativity. Copyright in Australia is considered to be a bundle of economic and moral rights conferring on their owner, the exclusive right to act and to deal with the object protected by the copyright. As with Indonesian copyright, the creation of an object automatically confers the protection of copyright; there is no requirement to formally register the object. Subject to Section 31 of the Copyright Act 1968, copyright in original works is generally the exclusive right of the copyright owner to deal with the object in any way that is legally permissible. The copyright owner is the creator of the original work, or is any other person or entity legally entitled to exercise the rights vesting in the copyright owner. An 39 Sudaryat, Sudjana, and Rika Ratna Permata Intellectual Property Rights Hak Kekayaan Intelectual, Bandung: Oase, 2010 p.46. 40 This article states that the registration of a creation is not a requirement to get protection under Indonesian Copyright system. 41 Black‟s Law Dictionary. agreement assigning or licensing the ownership or rights in copyright to a third party must be in writing if it is to be enforceable – Section 35. Section 32 of the Copyright Act 1968 , provides protections to the creators of original subject- matter or “subject-matter other than works. Eight categories specify the “subject-matter” and “works” eligible for protection. These include literary works, dramatic works, musical works, and artistic works, also including performances and works of artistic craftsmanship. Any work falling within a specified category will enjoy the protection of copyright; works outside these categories are not protected. Protected “subject-matter” or “works” must be the identifiable product of individual or collective human intellect and effort. The respective contributions of multiple contributors to original work must be identifiable if they are to be adequately protected. Copyright does not apply to intangible concepts, thoughts or ideas; to gain the protection of copyright under Australian law, the subject-matter or subject matter other than works that is to be protected by copyright, must be given tangibility; it must be written, drawn, photographed or crystallized in a recognizable medium. From the perspective of Australian copyright legislation, S32 has considerable relevance to wayang kulit when conceptualized against the Australian Aboriginal creative culture. As with wayang kulit , Aboriginal works are of a dramatic, musical, performance or artistic nature. Their works are generally created over extended periods of time and draw on the collaborative hierarchies of status, knowledge, skill and capacity. These works embody the spirituality and beliefs of the culture, depict significant events, features and relationships; they deal with formative cultural and historical matters. In Aboriginal community settings, communal activity and endeavor commonly involves groups of people, either consistently or periodically, contributing to a body of artistic work. Under the law, unless each of these people can be identified and their contributions quantified, copyright protection will not be afforded to the work. It is common for Aboriginal people to forfeit their copyright protection because they are not aware of the laws, do know understand the use and misuse of their work or are unable to identify the contributors to original work. And much important Aboriginal art is not reduced to a tangible form because it takes the form of drawings in the sand, structures made of leaves, sticks and other material. An example of how significant, but fragile copyright protection can be is to be found in the creation of Aboriginal works of art by Aboriginal artist Mandy Davis. In 2005, Mandy Davis saw her painting „Emu‟ the Work copied onto a commercial vehicle; she had not consented to this use and had no prior knowledge of its use. The unauthorized use of the work had distorted the image, making it unreflective of the original work. The key issue in this matter was the infringement of the artist‟s copyright in the Work, together with the infringement of her moral rights of attribution – recognition of her human intellect, and of artistic integrity. The company distorted the Work when reproducing it on the commercial vehicle, the colours were changed and its creation was not attributed to Mandy Davis as the original creator. The designs and artworks illustrate Mandy Davis‟ cultural values, beliefs and connection to her ancestors. A settlement resulted in the work being removed from the vehicle and the economic value of the copyright paid for the unauthorized use of the work. Copyright is a significant right of protection; it ensures access to the rightful economic and moral value for the original creator and survives for 70 years following the death of the creator s33 Copyright Act .

III. Mechanism to Settle Copyright Infringement Regarding

Wayang Kulit From Indonesian and Australian Copyright Laws Copyright provides protection for the human intellect applied by the original creator, which is ultimately embodied in a tangible form especially in the field of literature, scientific and artistic works. It is the exclusive right of the creator or the copyright holder of a work or creation that recognizes the creativity, imagination, skill, knowledge and other factors invested the creation by its creator. Historically, the concept of copyright protection originated in Western countries due to the concern for the protection of the rights of i ndividual‟s. The concept of copyright protection and its introduction to a country such as Indonesia, where the sense of communality remains alive and tight, gives rise to a complex period of adjustment. During this period, considerable copyright infringement is evident. New Wayang kulit characters created by dalangs fall within the scope of artistic works. According to Article 401e of Indonesian Law No. 28 of 2014, new wayang kulit characters are part of many already protected creations. These new Wayang kulit characters must meet the criteria of being an expression of work 42 , have a tangible form and be original, unique and personal 43 . Any unauthorized use of such creations, whether in the form of copying, adapting or fixation, will be considered to be an infringement of copyright under Indonesian Law. Moreover, it is noted that under Indonesian Law No. 28 of 2014, registration of copyright is not mandatory 44 as a requirement to secure protection but only merely to help as evidence 45 should another party claim that work to be his creation. This reflects the intent of the protections under Indonesian copyright that automatically apply protection upon a creation being embodied in a tangible form Article 11 of Indonesian Law No. 28 of 2014. The discussion about infringement of copyright of new wayang kulit characters is intertwined with the discussion of the mechanisms available to settle any copyright infringement. This point is significant in that both Indonesian and Australian Copyright Law provide mechanisms to settle copyright infringement. It is because when legislators provide us provisions concerning the protection, these provisions need to be coupled with the mechanism to settle the dispute arise from the disobedience of such provisions to make the Copyright Law itself works appropriately. From an Indonesian copyright law perspective, Indonesian Law No. 28 of 2014 regulates the mechanism to settle the copyright infringement of wayang kulit . As is noted above, the new wayang kulit characters of a dalang fall within the scope of Article 401e of Indonesian Law No. 28 of 2014; unauthorized use for economic purposes will infringe the moral and economic rights of the creator or copyright holder – being regarded as an infringement of copyright. Similarly, from Article 9 paragraph 3 of Indonesian Law No. 28 of 2014, it is clear, that anyone who does not have the permission of the creator or the copyright holder is prohibited from copying and or using the creation commercially. The law possesses mechanisms to settle disputes because the object or the creation, if properly formalized, falls under the protection of the law. Clear provisions prohibit unauthorized commercial copying or use of the creation and the law recognizes the intrinsic rights individual, economic and moral rights attached to the creator. 42 Artice 11 of Indonesian Law No. 28 of 2014. 43 Article 13 of Indonesian Law No. 28 of 2014. 44 Article 642 of Indonesian Law No. 28 of 2014. 45 It is stated in Article 31 of Indonesian Law No. 28 o f 2014 that “ unless proven other wise, which is considered as the creator, the person whose name is…… d listed in the general List of Creation as the Creator ”. The mechanisms to settle disputes as to the infringement of a new wayang kulit character are contained in Chapter XIV of Indonesian Law No. 28 of 2014 - Settlement of Disputes. Article 95 1 of this Law identifies several means of dispute settlement are available to the parties, including alternative dispute resolution, arbitration or court. This Article specifies the jurisdiction of Commercial Court 46 in these matters; the Commercial Court ids the only Court competent to settle copyright disputes. Copyright disputes must, here the parties are in the territories of Indonesia, first proceed through a mediation or alternative dispute resolution. Court proceedings will not be permitted without a genuine attempt to resolve the dispute out of court 47 . The creator or copyright holder may seek compensation for economic loss or recompense as provided for under Article 96 of Indonesian Law No. 28 of 2014. Article 99 1 of the law confirms the right of a creator, in this case, the dalang or the copyright holder of a new wayang kulit character, has the right to seek compensation in the Commercial Court for copyright infringement. Chapter XVII of Indonesian Law No. 28 of 2014 specifies the penalties for copyright infringement found pursuant to XIV. For example, if a person has copied, published or distributed a creation Article 91a,b,e such as new wayang kulit character without the permission of its creator, an infringement of his copyright will arise. An example of this would be a production in some way of the “dutch man” originally created by Dalang Putu Rekayasa. The infringement a creator‟s economic right is punishable by four years imprisonment and or a maximum fine of one billion rupiah 48 . As this matter is a criminal offence, Article 91a,b,e of Indonesian Law No. 28 of 2014 requires that a complaint must be made to by the creator or the copyright holder specifying economic loss, before an action may be taken. If no complaint is made, an infringement will not be found. Infringements of Australian copyright laws are dealt with in Division 2 of the Copyright Act . A person infringes the copyright of the legitimate copyright owner if they act in any way or do anything that is inconsistent with the rights conferred by a copyright. Acts constituting a breach of copyright include the sale, reproduction, copying, exhibition, distribution or use of the object in any way that diminishes or prejudices the rights of the of the owner of the copyright. D ivision 3 of the Act permits the “fair dealing” in “subject- matter” and “works” for the purposes of education, research, recitation, criticism and review, news reporting, libraries and other public domains. Part V of the Act deals with the offence of infringement of copyright and remedies. An action may be brought by a copyright holder who claims infringement of his or her copyright. The key issues a Court must take into consideration in determining the infringement of copyright include the power of the person concerned to prevent the breach, the nature of any relationship between the owner of the copyright and the person alleged to have committed the infringement and any steps taken by the person to avoid committing the infringement. Other key concerns for the Court examines are the original creator‟s right of attribution and right to the right of integrity of work or subject matter. For relatively minor infringements, the Magistrates Court may grant an injunction against the continued infringement of copyright and award compensation in the form of damages or accounting for profits. Serious technical matters regarding copyright infringements are dealt with by the higher courts. Australian jurisdictions increasingly rely on the use of alternative dispute resolution mechanisms such as mediation and assisted negotiation to resolve dispute prior 46 Article 952 of Indonesian Law No. 28 of 2014. 47 Article 954 of Indonesian Law No. 28 of 2014. 48 Article 1133 of Indonesian Law No. 28 of 2014.