BASE DATA PROTECTION LAW IN THE CONTEXT OF COPYRIGHT INDONESIA

Database as a new issue in the discussion of copyright should be a concern
together. However the next issue will become an integral part of
copyright protection in Indonesia. Now, cases of violation of copyright law
in the database has not been a lot of things, but perhaps did not rule on
future cases of violation of copyright law to the database will
arise. This paper will try to explain copyright law protection against
database.
New problems in the field of copyright seems more days will continue
developed. This is in line with the development of science as part of the
object protected by copyright. These consequences would demand that the law
copyright as an instrument in order to provide copyright protection will
always adjusted to these developments.
A database is a new problem arising from the development of science
knowledge. Data base itself is now an integral part of the scope of
copyright protection. This is a legal arrangement new.1 In this context,
please be aware of copyright protection. To find out can be done with
examine the normative aspects of copyright law specifically relating to the protection of rights
Copyright. Based on this exposure will be presented some aspects of
related to copyright protection.

Copyright Basic conception
understanding of copyright protection must begin with an understanding of the
basic conception of copyright. In the copyright known some actors, called
with the creator. Creator is a person or persons jointly
that the inspiration gave birth to a creation based on the ability of the mind,
imagination, dexterity, skill or expertise that is poured into a form that
unique and personal. Very clearly the creator can be composed of individuals
FIRST

In the explanation of Act No. 19 of 2002 on Copyrights mentioned several new provisions,
namely: 1). Database creation is one that is protected; 2). Use any good tool
via cable or wirelessly, including internet, for screening products of optical disc
(optical disc) through audio visual and / or telecommunications facilities; 3). Settlement of disputes by
commercial courts, arbitration or alternative dispute resolution; 4). While the court for determination
prevent greater losses for holders of rights; 5). The deadline for the process in the field of civil rights
copyright and related rights in both the Commercial Court and the Supreme Court; 6). Inclusion of the right
electronic management of information and means of control technology; 7). Inclusion of monitoring mechanisms
and protection of products that use high-tech production facilities; 8).
Penalty provisions for violations related rights; 9). Criminal sanctions and fines of at least; 10). Threats
criminal proceedings against the multiplication of the use of computer programs for commercial purposes is illegal
and against the law.
the individual or group of several people simultaneously
same. Creator when expressing creativity and imagination to give birth
what is called the Creation. According to the provisions of Article 1 of Law No. 3 figures. 16 Years
2002, Creation is the result of any work of the creator of that show originality in
the field of science, art and literature. A creation that has been expressed
will bear significantly copyright. Copyright ownership is the basis for
creation which has been realized by the creator. The complete Article 2 paragraph (1) of Law No.
16 of 2002 affirmed:
Copyright is the exclusive rights for the creator or copyright holder to
announced or reproduce his creation, which arise automatically
after a creature born without limitation by reducing the regulatory
legislation and regulations.
From the explanation above article, it can be affirmed that the copyright in
essentially exclusive rights to its monopoly, in which the right was obtained
automatically when a creature is born. The existence of copyright in the beginning
strongly influenced by the legal system. This is as stated by Carolyn
Hotchkiss which states: 2
Copyright law has used three different approaches in its development. For civil law
countries, copyright has protected both the economic and moral rights of authors.
Under civil law systems, owner of copyrights still may have to recognize the rights
of the original authors ... Common law legal systems tend to view copyrights as a
protection solely of economic interest. Socialist legal Historically systems have been
less Concerned with payment to authors than with the management of culture for the
purposes of the revolution.
Looking at this statement, it is clear that copyright is also strongly influenced
by the legal system in a country. There is said that the legal system
civil law is to promote the legal protection of moral rights and rights
economics, common law legal system leads to the protection of economic interests
the publisher and the socialist legal system just does not pay attention to the economic rights of the
author, but all were oriented towards the interests of the revolution.
However, copyright is now also known as a monopoly. In the right
These monopolies have two main rights, the moral rights and rights of the Special ekonomi.3, in the case
SECOND
Carolyn Hotchkiss, International Law for Business, New York: Mc Graw-Hill, Inc., 1994, hlm.305 -
306.
THIRD

Moral rights are rights inherent in the person of the creator, while the economic rights is the right
to obtain economic benefits from the creation. View Budi Agus Riswandi & Shamsuddin, Rights
Intellectual Property Law and Culture, Jakarta: Rajawali Press, 2003, pp .. According to Marshall Leaffer
said that although the scope of moral rights differ from one country to another, but the moral rights
is a mixture or combination, which generally consists of three interrelated components
complete: 1). The right of integrity - the right that the work not be mutilated or distorted; 2) The right of
paternity - the right to be acknowledged as an author of the work; 3). The right of disclosure - the right to
decide when and in what and in what form the work will be presented to the public. See Hendra Tanu
Atmadja, Copyright Music or Songs, Jakarta: UI Press, 2003, pp. 76.
acquisition of copyright automatically, this conception seems to be blurred when the
in Law No.. 19 of 2002 also set about signing creation. This vagueness
not only in understanding the level of ordinary people, but sometimes the practitioners
(such as judges) to catch the registration of copyright is understood as a form of acquisition
copyright. Simply put, when a judge facing a dispute or a violation of copyright
judges are always in a hurry to conclude that the copyright holder always
given to the copyright holder of the certificate obtained from the registration of creation.
In fact, it is possible even though he holds a certificate of copyright is not necessarily he
as the copyright holder really is.
Therefore, please note that the registration of creation rather than as
embodiment of the acquisition of copyright, because copyright actually obtained
automatically at the time of creation was born. This conclusion is reinforced by the provisions
Article 35 paragraph (4) of Law No. 19 of 2002 which states that the provisions of
registration as referred to in paragraph (1) is not an obligation to
obtain copyright. So also in the explanation stated that the Registration
creation is not a necessity for the creator or copyright holder and
emergence of the protection of a creation that began in the creation or materialized and there
not for registration. This means a creation both registered or not
registered remains protected.
In countries that adopt the Anglo-Saxon system of systems, such as English and
United States of a copyright can be obtained if meet two conditions, namely: 4
1. Authenticity (original)
2. implemented in the form of real and can be read.
This is referred to the origin (original) is that the work concerned must
is something new and tangible difference with other works. Because
it, a joke and the title (titles) can not dihakciptakan. For example in the Copyright
act of the USA Section 102 (b) includes the things that are not protected by copyright, namely;
ideas, procedures, proces, system, method of operation, concepts, principles, fact and
news. Ideas or ideas / ideas do not include a protected thing, but the expression
of ideas is one thing to get legal protection.
The period of copyright protection according to Law No.. 19 of 2002 divided into
in some sections, where each part is the time period is
varied. First, given the copyright protection for creators of life to 50
years after the creator dies. For the protection of these types of rights
copyright protected consists of books, pamphlets, all written work, play or drama
musical, dance koregerafi, all forms of art, song or music, architecture, lectures, classes,
speech, other similar creatures, props, maps, translation, interpretation, adaptation and flowers
medley. Computer programs cinematography, photography, databases, works of
pengalihwujudan protected for 50 years since it was first announced. Creation
the form of folklore, the folk culture, such as story, tale, fairy tales, legends, chronicles,
song, handicrafts, choreography, dances, calligraphy and other art copyrights
protected without time limit, while the creation of which was published, but is not known
creator / publisher is protected for 50 years since first creation
public.
TO FOUR

Ade Maman Suherman, Legal Aspects in the Global Economy, Jakarta: Ghalia Indonesia, 2002,
hlm.102.
With this protection period, this means that
copyrighted works are protected when will be utilized (such as;
reproduced, adapted, and so forth) for the purpose of commercial interests
if it is without a permit or license is considered as a violation of copyright.
However, copyright law in Indonesia is not an absolute claim that
every action is dikatagorikan as copyright infringement. Copyright law
Indonesia is also known exception that the multiplication of a deed or
announcement can not be considered as a violation of copyright law. Article 15
Law No. 19 of 2002 states:
On condition that the source must be mentioned or included, not considered
as a violation of copyright:
a. Use of other parties to the creation of educational purposes, research,
papers, report preparation, writing criticism or review of a
the problem without harming the interests of creators reasonable;
b. Retrieving the creation of others, in whole or in part in order to
defense within or outside the court;
c. Retrieving the creation of others, in whole or in part in order to
purposes:
1. lecture solely for the purpose of education and science;
or
2. Performances or performances are free of charge with
provisions are not detrimental to the interests of creators reasonable.
d. Duplication of a creation science, art and literature in
Braille characters for purposes of the blind, unless it is the multiplication
commercial;
e. Duplication of a creation than a computer program, is limited by
way or any tool or similar process by the public library,
institutions of science or education and non-documentation center
solely commercial for its activities;
f. Changes made based on the balance of the technical implementation of
works of architecture such as the creation of buildings;
g. Making a backup other than a computer program by the owner
conducted computer solely for their own use.
Conceptions of the above exceptions known as fair use or fair dealing.
In Section 107 of U.S. Copyright Act, any conception of fair use was known. Existence
from conception of fair use is an attempt of the limitations on exclusive rights. Within
provision was explained that there are four factors that must be considered
application of this conception of fair use, namely: 5
1. the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
TO FIVE

Paul Goldstein et al, Selected Statues and International Agreements on Unfair Competition,
Trademark, Copyright and Patent, New York: Foundation Press, 2000, pp. 107.
3. The amount and substantiality of the portion used in relation to the copyrighted work
as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.
With a view to the two conditions of different countries can be confirmed
although from different legal systems in which Indonesia is adopting a civil law system and
American with a common law system, but the copyright issues the two countries,
particularly on the conception of fair use are equally set. Probably could have
all this departs from the importance of scientific development in
essentially be an area that is protected by copyright.
Database Protection in Copyright Law
Copyright Reform Act with the stipulation of Law No.. 19 of 2002 as
the current legal basis for managing copyright issues basically attempt
respond to developments in society, especially on copyright. This assumption
at least can be seen in the general explanation of Act No. 19 of 2002. According
general explanation revealed three main reasons underlying the reform of Law No..
19 of 2002, namely: First, Indonesia as an archipelagic state has
arts and cultural diversity are very rich. This was in accordance with
ethnic diversity, ethnicity and religion as a whole is
national potentials that need to be protected. The wealth of art and culture is one
a source of intellectual work that can and should be protected by law.
Wealth is not merely for art and culture itself, but can
used to improve the ability in the field of trade and industry
involving its creators. Thus, the wealth of art and culture
protected it can improve the welfare not only for its creators only,
but also for the nation and negara.6
Secondly, Indonesia has participated in the social interaction with
become a member of the Agreement Establishing the World Trade Organization
(Establishment Agreement of the World Trade Organization) which includes
Agreement on Trade Related Aspects of Intellectual Property Rights (Agreement on
Trade Aspects of Intellectual Property Rights), hereinafter referred to as TRIPs, through
Law No. 7 of 1994. In addition Indonesia also ratified the Berne
Convention for the Protection of Artistic and Literary Works (Berne Convention for the
Protection of Literary and Artistic Works) through Presidential Decree No. 18 Year 1997
and the World Intellectual Property Organization Copyright Treaty (Treaty Rights
WIPO), hereinafter referred to as the WTC, through Presidential Decree No. 19 Year 1997;
Third, Indonesia now has a Law Number 6 Year 1982 on
Copyright as amended by Law No. 7 of 1987 and
last amended by Law No. 12 of 1997, hereinafter referred to
Act Copyright. Although the change had already contains some
adjustment in accordance with article TRIPs, but there are still some things that
TO SIX

To this can be read at Kemal Idris, Intellectual Property Review A Strength
For Economic Growth, London: WIPO, 2004.
need to be refined to provide protection for intellectual works in
field of copyright, including efforts to promote the intellectual development
derived from the arts and cultural diversity mentioned above. Of some conventions in
field of intellectual property rights mentioned above, there are several provisions
which was duly exploited. In addition, we need to confirm and select
copyright status on the one hand and related rights on the other hand, in order to provide
protection for the related intellectual property more clearly.
With this frame of mind also has brought a logical consequence
the existence of Law Number. 19 In 2002 in addition to refining the rules
new, this legislation also adds the charge material with new issues in
field works. Database problem is not one of the settings terlepaskan
charge material copyright law in this statute. This can be seen in
fully in the provision of Article 12 paragraph (1) of Law No. 19 of 2002 which states:
In this law of creation is the creation of protected areas
science, art, and literature which includes:
a. Books, computer programs, pamphlets, perwajahan (lay out) paper which
issued and all other written works;
b. Speeches, lectures, speeches and other similar creatures with it;
c. Props created for the purposes of education and science;
d. Songs or music with or without text;
e. Drama or musical drama, dance, choreography, puppet and pantonim;
f. Art in all forms such as painting, drawing, sculpture, art
calligraphy, sculpture, sculpture, collage and applied arts;
g. Architecture;
h. Maps;
i. Batik arts;
j. Photography;
k. Cinematography;
l. Translation, interpretation, adaptation, pastiche, databases and works of art from the results
pengalihwujudan.
Limitation of the database itself in Law No. 19th Year 2002 not specifically regulated in
general provisions. But for this limitation can be seen in the explanation of Article 12 paragraph (1)
f letter stating that the data base is a compilation of data in any form
which can be read by machine (computer) or in other forms, which for reasons
the selection and arrangement of the data content is the intellectual creations.
From this exposure, it is something that can be dikatagorikan as data bases,
if it is a collection of data that can be owned by one person or
more. Then, the data can be realized in the form of data or Paperless paper data.
In the end for the selection and arrangement are truly works
intellectual. Specially when the data were collected by involving the collection of data -
data owned by more than one person, then this does not reduce the rights of other creators
ciptaanya included in the database.
Limits on this, it seems almost coincides with the restriction that
provided by the provisions of Article 1 (2) of the Database Directive defines UK
data base as: A collection of independent works, data or other materials arranged
in a systematic way or Methodical and capable of being individually accessed by
of other electronic means.7 (a collection of works, data, other material freely arranged
a systematic or methodical way and capable of individually accessible via
or other electronic media).
Logical consequence of the existence of this arrangement, the database is an aspect
is important also to be protected. Protection intended primarily seen
of the existence of Law Number. 19 of 2002. When examined further legal protection
copyright of the database can be approached from two approaches, namely; protection
preventive law and legal protection that is repressive.
The first legal protection is the protection provided by law
to the copyright holder prior to the dispute, while legal protection
repressive law is the protection granted to copyright holders after
the emergence of disputes.
In the context of copyright law protection that can be preventative
done through the efforts of copyright registration and licensing. Law No. 19
In 2002 clearly states that copyright ownership is recognized when the creation
is realized, it is automatically protected by the copyright rights law
Copyright. However, sometimes it becomes something that "not clear" in the Law No. 19
Year 2002 itself recognizes registration as a means of proof of ownership rights
Copyright. Thus, it is not surprising that there is a dispute of copyright judges always
adhere to these evidentiary tool. In fact, did not rule out that
who did not register as the original owner of copyright. Departure from
this understanding, the copyright registration is very important to be done by the
including in the context of the creator of a database creator.
Preventive efforts to protect others and may be applied by the holder
copyright in the database can be done through a licensing mechanism. Licenses are licenses
given by the copyright holder or holders of rights related to the other party
to announce and / or reproduce or product creation related rights
with the requirements of the license application can tertentu.8 intended for two purposes,
namely: First, with the intention that the recipient a license can be legally made,
market, and exploit-dependent agreements reached by
the IPR-related parties, and; Second, the rewards are great and the way
pembayarannyya agreed upon by the pihak.9 Through this license, the holder of the rights
copyright will not be violated. Even with this license, then the holders of rights
Copyright precisely will benefit, especially from the economic side. Therefore,
consequences of granting the license will be paid a royalty to the
holders of copyright on the database.
If preventive efforts are not successful, Act No. 19 of 2002 still give
opportunity to the holders of copyright in the database to take steps to
TO SEVEN
Chris Reed John Angel (eds), Computer Law, Fourth Edition, London: Blackstone Press Limited,
2000, hlm.232.
TO EIGHT

According to the Law Dictionary by PH Collin licenses defined as: Official document which
allows someone to do something or to use something; Permission given by someone to do something which
would otherwise be illegal. See Gunawan Widjaya, Series Law of Business Licenses, Jakarta: Rajawali Press,
2001, hlm.8.
TO NINE
Director General of IPR, Build Small-Medium-Based Property Rights System Efficiency
Intellectual, Jakarta: department of justice-APEC-IPAustralia, 2004, pp. 17.
Other protection measures refresif form. In terms of legal protection
embodied in refresif can be done by providing civil penalties and
criminal. For civil penalties typically done tort. This is in line
with the wording of Article 56 paragraph (1) of Law No. 19 of 2002 which states:
Copyright holder has the right to file for compensation to the Court
Commerce for copyright infringement and asking for confiscation of the objects
announced the creation or propagation of it.
With this provision, the claim for damages as a step resolution
civil disputes is not done in state court, but should be done to
commercial courts. For criminal sanctions in the case of copyright violations of Law Number. 19
Year 2002 is very clear already mengaturanya in the provision of Article 72 paragraph (1), (2), (3),
(4), (5), (6), (7), (8), (9). Core rather than criminal sanctions in the Law No. 19 Year 2002 on
Basically apply biasa.10 offense means the law enforcement agencies in this case the police
can immediately take legal action for copyright infringement without having to
wait a complaint from the aggrieved party (read: the copyright holder or the right
related). In addition, the criminal provisions of copyright is also applying criminal sanctions
minimal. This can be seen one of them on the provisions of Article 72 paragraph (1) the
reads:
Whoever intentionally and without just acts as
referred to in Article 2 paragraph (1) or Article 49 paragraph (1) and Paragraph (2) is liable to
imprisonment each briefest 1 (one) month and / or a fine of
some Rp. 1,000,000.00 (one million rupiah) or imprisonment of 7 (seven)
years and / or a maximum fine of Rp. 5,000,000.00 (five billion).
Initial idea of a minimal criminal penerapakan sanki as a serious step to
trying to reduce the practices of copyright infringement that is very vivid
occurred in Indonesia. Although, actually combating copyright is not enough just
by relying on legal norms alone, but should also be supported by
moral commitment from law enforcement as a party that will uphold the norms
the law itself.
Conclusion
Protection database forward is essential to protect
significantly. Therefore, the action taken within the framework of this protection
not only carried out preventive, but also should be protected
repressive law when in reality there has been an infringement of copyright
the data base. Preventive legal protection may be through registration and licensing,
whereas the legal protections can use refresif tort for
keperdataannya problems, while the penalty with respect to violations
of criminal copyright data base.
TO TEN

Application of ordinary offense has invited pro and when in the discussion Kotra Updates
Copyright Act which has now established a Law No. 19 of 2002. Although, in the end offense
This used to remain approved.
Bibliography
Ade Maman Suherman, Legal Aspects in the Global Economy, Jakarta: Ghalia Indonesia,
2002.
Agus Budi Riswandi & Shamsuddin, Intellectual Property Rights and Culture Law,
Jakarta: Rajawali Press, 2003.
Carolyn Hotchkiss, International Law for Business, New York: Mc Graw-Hill, Inc., 1994.
Chris Reed John Angel (eds), Computer Law, Fourth Edition, London: Blackstone Press
Limited, 2000.
Director General of IPR, Build Small-Medium-Based System for Administrative Reform Right
Intellectual Property, Jakarta: department of justice-APEC-IPAustralia, 2004.
Gunawan Widjaya, Series Law of Business Licenses, Jakarta: Rajawali Press, 2001.
Hendra Tanu Atmadja, Copyright Music or Songs, Jakarta: UI Press, 2003.
Kemal Idris, Intellectual Property Review A Strength To Growth
Economy, Jakarta: WIPO, 2004.
Paul Goldstein et al, Selected Statues and International Agreements on Unfair
Competition, Trademark, Copyright and Patent, New York: Foundation Press,
2000.