COLLECTIVE MANAGEMENT ORGANIZATION FOR MUSIC INDUSTRY PROTECTION IN INDONESIA
INTRODUCTION
In the music industry in Indonesia, infringement of copyright of the song (copyright) and recorded work (related right) happened very extensive. Commonly, infringement of copyright will be shown on the street around the public area as CDs or VCDs. Infringement could be happened in the Karaoke, Café, Restaurant, Fitness Club, or Hotel. In this section, infringement in Karaoke will be the one of example of infringement in the Music Industry that having correlation with how collective management organization (CMO) works for the legal protection in music industry in Indonesia.
PROBLEMS
1. What kind of responsibility of CMO in Indonesia?
2. What kind of indicator to know how CMO can effectively work for the legal protection in music industry in Indonesia?
3. How to make the CMO in Indonesia more effectively work?
BASIC CONSEPT OF COPYRIGHT AND RELATED RIGHT IN THE MUSIC INDUSTRY BASE ON THE LAW OF COPYRIGHT NUMBER 19 YEAR 2002
Base on article 1 point 9 Law of The Republic of Indonesia Number 19 Year 2002 concerning Copyright, stated that “Copyright shall mean an exclusive right for an Author or the recipient of the right to publish or reproduce his work or to grant permission for said purposes, without decreasing the limits according to the prevailing laws and regulations”. In this law, a work that is protected includes songs or music with or without lyrics, as mentioned in Article 12 point 1 letter d.
There are two kinds of right in a copyright work, namely moral right and economic right. At the international level, the moral right and the economic right are conferred by The Berne Convention for The Protection of Literary and Artistic Works, commonly known as the “Berne Convention”. The Berne Convention was adopted in 1886 and has been revised several time that administrated by the World Intellectual Property Organization (WIPO).
The related right also known as the neighbouring rights are the rights provided by the intermediary workers to support the copyright work. The related right is belong to the worker namely performers, producers, and broadcasting organization.
Under the article 1 point 9, “Related rights shall mean the rights which are related to Copyright, that is, the exclusive right for a performer to reproduce or to publish his/her performances; for a Producer of Phonograms to reproduce or to rent phonographic works; and for a Broadcasting Organization to produce, reproduce, or to broadcast its broadcasting works.”
At the international level, related rights are conferred by The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, commonly known as Rome Convention. The Rome Convention was adopted in 1961 and has not been revised. It is jointly administrated by the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the International Labour Organization (ILO) and the World Intellectual Property Organization (WIPO).
Pursuant to the article 1 point 10, stated that “Performer shall mean an actor/actress, singer, musician, dancer or a person who performs, acts, shows, sings, communicates, recites, or plays a music composition, drama, dance, literary work, folklore or other kinds of artistic works.”
Under the article 1 point 11, stated that “Producer of Phonogram shall mean a person or legal corporate body that first records and has the responsibility to conduct the recording of sounds or voices, both the recording from a performance and from other recording of sounds or voices.”
In accordance with the terms of the article 1 point 12, stated that “Broadcasting Organisation shall mean an organization, which runs broadcasting in the form of a legal body that broadcasts a broadcasting work through wire or wireless transmissions or other electromagnetic systems.”
Based on the article 1 point 5, stated that “Publication shall mean the reading, broadcasting, exhibition, sale, distribution or dissemination of a Work, by utilising whatever means including the Internet, or by any manner so that such Work is capable of being read, heard or seen by any other person.”
Reproduction means to increase the number of a work, either as a whole or its substantial parts using either the same or different material, including the changing, including the changing of the form or mode of a work permanently or temporarily. As mentioned on the article 1 point 6.
If another party intends to use the copyright or related right work, he/she have to get the permit from the creator or Copyright holder, that commonly known as the “License”. According to the article 1 point 14, stated that License shall mean a permission granted by the Copyright Holder or the Holder of Related Right to another party to announce and/or to reproduce his/her works or products of his/her Related Rights under certain requirements.
License shall have be given to another party a license to another party based on a licensing agreement to carry out the acts as referred to in Article 2. (Article 45 point 1)
The relationship between the license and the royalty clearly stated by under the article 45 point 3. In accordance with the term of this article the implementation of the License shall be accompanied by the obligation to pay royalty to the Copyright Holder by the licensee base on the agreement between the two parties by using the agreement of professional organization as a guide, unless otherwise agreed.
INFRINGEMENT OF COPYRIGHT AND RELATED RIGHT IN THE MUSIC INDUSTRY IN INDONESIA
In the music industry, creativity began by created a song by the Creator or Composer or Song Writer. Composer or the Copyright Holder having the moral right and the economic right to broadcast and or to produce her/his work.
A song is performed by the Performer. By the Producer, a song and the performance of the song are produced on any kind of media. A song, the performance of the song, and the recording of the song are broadcasted through the television and radio by the Broadcast Organization,
Infringement of copyright happened if another party publishes and or produces the work of creator in such a way bellow:
1. Does not mentioned the creator’s name on a work or published as the creator’s work;
2. Without any license from the Licensor (Creator, Copyright Holder, or Related Right Holder)
Infringement of related right happened if another party creates, produces, publishes, or broadcast the sound recording or the picture of Performer’s show or the broadcasting work in such a way bellow:
1. Without any license from the Performer, he/she creates, produces, or publishes the sound recording and or the picture of Performer’s show;
2. Without any license from the Producer, he/she produces and or rents the sound recording of Producer;
3. Without any license from the Broadcast Organization, he/she creates, produces, and or rebroadcast the broadcast organization’s work;
The example case of infringement of copyright and related right in the music industry is infringement executed in the Karaoke. The Owner of Karaoke shall be responsible on how the song and the related right be published and reproduced in order to give the service to his/her costumers. If proven that the Owner published and or produced the song or the sound recording or make the synchronization with another work without any license from the Creator or the Copy Right Holder or Related Right Owner, he/she can be sue by the infringement of copyright and or related right.
In this case, infringement happened if Owner of Karaoke publishes and produces a work without any license from the Creator or the Copyright or related right holder. It is likely a stealing. The Owner of Karaoke sells the facilities and services from the work that he/she get from the stealing activity, without any permission from the right holder, without any license, without obligation to pay the royalty.
But, in the several case of infringement of copyright and related right of industry music in Indonesia happened by the Creator, Right Holder, or Related Right Owner that has been a member of CMO. How could it be?
COLLECTIVE MANAGEMENT ORGANIZATION IN INDONESIA
In the collection of royalty, Creator or right holder or right owner and the Owner of Commerce give the assignment to the CMO to manage the relationship, obligation and the payment of the royalty. Historically CMO of the Copyright and Related Right has been known since 1777 in France in the field of theatre. But, since 1850 in France, a CMO in the field of music began to manage the composer and song writer.
In accordance with the term of a WIPO’s publication “Collective Management of Copyright and Related Rights”, stated that “Collective Management is the exercise of copyright and related rights by organizations acting in the interest and on behalf of the owners of rights.” But in Indonesia, until this day, there is no legal definition that can definite what the meaning or definition of CMO. Commonly, CMO can be defined as the organization that given the power from the Creator or right holder to manage the license matter and the royalty payment from the Owner of Commerce.
In Indonesia, one and the only one organization that declare itself as the CMO is Yayasan Karya Cipta Indonesia, has been known as KCI or YKCI, established by the deed of establishment date 12 June 1990 on Notary Abdul Latif. Temprary, the scope of work KCI covers the music industry, as mentioned on official website of KCI, www.kci.or.id, stated that “The thought of changing the world Music to Creation is in the future YKCI will not only deal with music sector but also in other sectors, literature, and science. Music is only a pilot project.”
KCI is a member of The International Confederation of Societies of Authors & Composers (CISAC), that the principal organization of collecting societies in the field of performing right. KCI also a member of The International Bureau of Mechanical Reproduction Right (BIEM), that the principal organization of collecting societies in the field of mechanical right. Both of the principal organization above are standing under the World Intellectual Property Organization (WIPO).
The objective of KCI is bridge the communication between Creator or Right Holder to arrange, collect, and to distribute the royalty. KCi can work by the Power of Attorney and the License Agreement.
THE ROLE OF KARYA CIPTA INDONESIA AS COLLECTIVE MANAGEMENT ORGANIZATION IN MUSIC INDUSTRY IN INDONESIA
As a CMO in Indonesia, the activities of KCI as mentioned bellow:
1. Provide the administrative manner for the professional relationship and the legal relationship, such as:
• Reciprocal Agreement with the other states;
• Identify the Indonesian song and other with Information & Technology tools;
2. Provide administrative manner relates to license agreement for all the user in Indonesia, such as:
• Royalty collecting from the User or Owner of Commerce through out Indonesia or through out Sister Societies abroad;
• Royalty distributing for All the Creator or the Right Holder through out Indonesia or through out Sister Societies abroad;
3. Do the social activities relate to socialize the regulation and policy regarding Copyright Law and Related Right Law for Composers, Right Holder, Related Right Owner, User or Owner of Commerce, Law Enforcement Professional, Public, and Academic people;
4. Do the legal remedies if there is an infringement, through the litigation or non litigation;
With the activities above, it can be seen that basically KCI has the bridge role which is connecting the Creator or Right Holder (Licensor) and the User or the Owner of Commerce (Licensee). KCI administrates the relationship between the Licensor and the Licensee. KCI has the role to make the related party and the public understand about the infringement and the law enforcement of Copyright and Related Right. For this reason above, KCI as the CMO in Indonesia has the main role as mentioned bellow:
1. Administrative Role;
2. Social Role;
3. Legal Role;
EFFECTIVENESS OF CMO IN PROTECTION OF COPYRIGHT AND RELATED RIGHT IN MUSIC INDUSTRI IN INDONESIA
There is no measurement to know how the CMO has worked effectively in the copyright and related right protection in Indonesia. As the CMO is a management organization, there is the standardization or indication in how an organization (management organization) can be said effectively works. The indicators of effectiveness of CMO’s in Indonesia, as mentioned bellow:
1. Structure of the organization which is properly support for the function and vision of the organization;
2. Planning of the Program is clearly stated base on the commitment, vision, mission, and the objection of the organization;
3. Detail planning on the recruitment of human resources and membership;
4. Clearly policy concerning how the royalty shall be collecting and distributing;
5. Monitoring and Evaluation System that can be easy and fair executed;
6. Fairly and periodically report system;
7. Comprehensive and fairly documentation;
8. Human resources capacity is properly support for the function and the authority;
With the 1st indicator and supported by the 8th indicator, hopefully KCI could be a CMO that can do the roles above. To held the roles above KCI shall have the clearly planning to goal the mission and vision of KCI.
As the one and the only one of CMO in Indonesia, KCI hopefully can be playing the important role to enforce the Copyright and Related Right Law. Protection of Copyright and Related Right deeply relate to the monitoring system, evaluation system, and reporting system of CMO’s work.
REFERENCES
1. Law of The Republic of Indonesia Number 19 Year 2002 concerning Copyright;
2. Presidential Decree Number 19 Year 1997 concerning Ratification of WIPO Copyright Treaty;
3. Article : Collective Management of Copyright and Related Rights
4. www.kci.or.id
5. Small investigation on any Karaoke Café in Jakarta (Indonesia)
