Balancing Creativity and Copyright Protection in Indonesia

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In creative works, copyright protection stands as a cornerstone, safeguarding the intellectual property of inventors and fostering a vibrant ecosystem of innovation. However, within the scope of copyright law exists a crucial exception known as fair use.

Fair use serves as a pivotal mechanism, allowing for the limited use of copyrighted material under specific circumstances. In Indonesia, navigating fair use and copyright compliance requires a nuanced understanding of legal principles and practical considerations.

With expertise in this domain, we at Am Badar & Am Badar provide comprehensive services to advise domestic and international clients on fair use and copyright matters in Indonesia. To explore deeper, we recommend reading A Brief Understanding of Infringement of Copyright and Remedies and access our insights, services, as well as contact us page.

The Fair Use Doctrine in Indonesian Copyright Law

In almost every country, including Indonesia, copyright law grants exclusive rights to the creators of original works to control how their works are used. Let’s delve more into the details:

What is Fair Use?

In general, fair use is a principle embedded in copyright law that permits the non-infringing use of copyrighted material for specific purposes, such as criticism, comment, news reporting, teaching, scholarship, and research.

It strikes a delicate balance between protecting the rights of copyright holders and promoting the free flow of public information and creative expression.

Specifically, in Indonesia, fair use in the realm of copyright protection is enshrined in Article 43 to Article 51 of the Copyright Law No. 28 of 2014. These provisions outline the circumstances under which the use of copyrighted material without authorization from the copyright holder may be considered fair use.

This means that in Indonesia, you can use certain copyrighted works without obtaining prior permission from the copyright holder, as long as your use meets certain criteria.

Furthermore, when evaluating a fair use claim for copyright protection, Indonesian courts will consider four factors:

  • The Purpose and Character of the Use

If the use goes against fair use principles or involves dishonesty, it’s less likely to be considered fair. However, if the use serves a different purpose than intended by the creator, like for education or illustration, it may be more likely to be fair.

  • The Nature of the Copyrighted Work

This involves considering whether the work is creative or factual. Creative works are often more protected than factual ones. On the other hand, factual works, like meeting minutes, have thinner protection.

  • The Amount and Substantiality of the Portion Used

Next, the court looks at how much of the copyrighted material was used and whether the core or essence of the work was taken. Generally, using a small portion for transformative purposes is usually considered neutral and fair.

  • The Effect of the Use on the Potential Market

Lastly, the courts examine whether the use of the material could negatively impact the market for the original work. If the use reduces demand for the original work or competes with licensed uses, it may not be fair.

For more official overview and information on copyright protection and fair use in Indonesia, visit reliable sources like the Directorate General of Intellectual Property of the Republic of Indonesia.

Key Considerations for Fair Use

Article 44 of Indonesian Law No. 28 of 2014 on Copyright states that using, taking, duplicating, and/or altering a creation and/or related rights product in whole or in substantial part is not considered a copyright infringement if the source is cited or mentioned in full for:

  • Education, research, scholarly writing, report preparation, writing criticism, or reviewing an issue without harming the reasonable interests of the Creator or Copyright Holder
  • Security and the administration of government, legislative, and judicial affairs
  • Lectures solely for educational and scientific purposes
  • Performances or shows that are not charged for, provided they do not harm the reasonable interests of the creator

However, to avoid infringement, it’s crucial to consider the four main factors for fair use as mentioned before. These factors can either support or oppose fair use. Therefore, no individual sub-factor can guarantee whether a use is fair or unfair.

Also, when reviewing copyright protection cases related to fair use, you may encounter potential ambiguity in some instances. This is usually influenced by various factors, such as the personal feelings of the judge regarding right or wrong.

Although the Supreme Court (Mahkamah Agung) of Indonesia has indicated that such infringements are not a factor in fair use, a morally offended judge may still release a decision opposing fair use.

Fair Use Examples

In Indonesia, many copyrighted materials can be used based on the principle of fair use, including:

  • Quoting Small Portions for Commentary or Criticism

Using quotes from books, news reports, or blogs to provide comments or critiques is not considered a violation of fair use. So, always remember to include the quotes.

  • Using Copyrighted Material for Educational Purposes

This usage is also not considered contrary to the principle of fair use. For example, quoting other researchers’ writings for the academic article you’re creating, whether it’s a picture, graph, or chart.

Collaborative Approach to Fair Use Issues

Collaborating with local intellectual property law firms like Am Badar & Am Badar can help you understand fair use issues better. You can also address these problems by adjusting to Indonesian laws.

Benefits of Partnering with a Local IP Law Firm

So, what are the benefits of partnering with a local law firm like ours? At Am Badar & Am Badar, we offer several advantages  for you:

  • Analyzing specific use cases and assessing the likelihood of fair use protection
  • Providing guidance on minimizing copyright infringement risks
  • Representing clients in potential copyright disputes arising from fair use claims

Now, it is clear that understanding fair use is essential for maintaining a balance between creativity and copyright protection in Indonesia. In this case, we are ready to assist you in navigating fair use issues with our Copyright Services.

For expert guidance on copyright matters, contact us today or explore our services and insights page. Also, read this article about  Dual Claims of Copyright Lawsuit Against Big Tech Companies.


Reviewed by Nabil Argya Yusuf

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