Robust Intellectual Property (“IP”) enforcement frameworks serve as critical safeguards for creative industries, fostering both innovation and economic development for individuals and communities at large. This essay examines the potential for adopting elements of Australia’s IP enforcement framework in Indonesia to bolster the protection of its ‘ekonomi kreatif’. Australia’s IP system is thoroughly developed and characterized by clear registration processes, strict penalties for violations, efficient collective management organizations like the Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society (“APRA AMCOS”), and a legal system based on precedents that ensures consistency in legal rulings. In contrast, Indonesia’s IP system faces significant challenges, including inadequate enforcement practices, widespread counterfeiting, and a largely informal creative sector that operates outside formal IP protections. By integrating certain features of Australia’s framework, such as enhanced judicial consistency, Indonesia could improve its IP system to better suit its unique cultural and economic landscape. Such a change would not only foster creativity but also attract foreign investment, stimulate innovation, and strengthen Indonesia’s position within the global creative economy landscape. However, given the cultural and legal differences between the two countries, any reform must resemble its unique IP landscape and achieve an equilibrium between protecting individual copyrights and respecting the archipelago’s rich, communal artistic traditions.
The Creative Economy
Creative economies contribute significantly to global economic growth, accounting for 3% of the world’s GDP and creating 29.5 million jobs worldwide. In countries such as the United States, which ranked 1st in the 2024 International Intellectual Property Index, intellectual property-intensive industries account for approximately 38.2% of the country’s GDP, equating to $6 trillion. In an era where global competition increasingly relies on intellectual capital, effective control of copyrights and other intellectual assets have become paramount.
Australia’s Creative Economy
Australia’s creative economy is a crucial contributor to its GDP and cultural landscape, including sectors like film, music, visual arts, and design. In the 2022-2023 period, Victoria’s creative economy contributed $40.5 billion, representing a 7.6% share of the state’s total economy, with an average annual growth rate of 4.8% over the past five years. In the music industry, APRA AMCOS reported a record group revenue of $740 million in the 2023-24 financial year, marking a 7.2% increase from the previous year. Net distributable revenue reaching $634.1 million, with approximately 86 cents of every dollar collected are returned to music creators. International revenue reached an all-time high of $86.1 million, up 22.5%, providing evidence of the global success of Australian and New Zealand songwriters and composers. The Australian film industry has produced internationally acclaimed films such as Mad Max: Fury Road, The Great Gatsby and Elvis. However, in the 2023-2024 financial year, investment in Australian feature films and television dramas declined by nearly 30%, attributed to global economic conditions, shifts in audience consumption, and uncertainties over federal incentives for large productions. Despite these successes, the creative industry faces challenges. A report by Creative Australia indicates that it is now harder than ever for professional artists to make a living, despite being highly educated and skilled. Factors such as rising costs, precarious employment, and the complexities of copyright in a digital environment contribute to these difficulties. This indicates that making sure artists fully benefit from their creativity is more crucial than ever.
Indonesia’s Ekonomi Kreatif
Indonesia’s diverse ethnic, cultural, and religious landscape holds significant potential in its creative economy. The vast cultural heritage fosters unique expressions in traditional crafts, performing arts, and contemporary art. The Indonesian government has actively promoted the creative economy, which now contributes roughly IDR 400 trillion, positioning it as the fourth largest economic sector after oil, gas, coal and palm oil. In 2024 alone, the sector generated approximately IDR 1,400 trillion (around USD 92.39 billion) in added value and exports, totaling around USD $27 billion, and created nearly 25 million jobs. Despite these substantial contributions, the sector faces challenges in commercialization due to the fact that the creative economy largely comprises an informal sector where inadequate intellectual property protection limits creators’ ability to benefit fully from their work. To address these challenges, the government has introduced initiatives such as Government Regulation No. 24 of 2022, which permits the use of IP assets as collateral for financing. Regional initiatives among ASEAN countries further demonstrate a collective effort to develop joint solutions for advancing intellectual property rights, such as cross-border collaborations on copyright protection and digital licensing standards. Despite their efforts to integrate informal activities into the formal economy and promote IP protection, challenges persist.
Indonesian IP Environment
The recent case involving songwriter Ari Sapta Hermawan and singer Agnez Mo highlights the challenges of IP enforcement in Indonesia, specifically the lack of clear legal precedent, leading to uncertainty around liability for copyright infringement. Hermawan accused Mo of unauthorized performances of his song “Bilang Saja”, and the Central Jakarta Commercial Court ordered Mo to pay 1.5 billion IDR in copyright royalties. This case sparked discussions about whether performers or event organizers should bear financial responsibility for such infringements. This discussion is further complicated by the industry norm, that typically place financial liabilities on event organizers. Similar disputes in other jurisdictions, where responsibilities are more clearly delineated, have resulted in more consistent legal outcomes, underscoring the need for a well-defined IP enforcement framework in Indonesia.
Comparison of IP Enforcement Frameworks
This incident provides an opportunity to compare Indonesia’s IP enforcement mechanisms with Australia’s. Australia is generally considered to have a well-structured and transparent IP framework.
In the 2024 International IP Index, Australia ranked 14th, while Indonesia ranked 49th out of 55 countries. Although both countries possess trademark laws, Indonesia faces challenges in effective enforcement because of a large informal economy and insufficient public understanding of intellectual property regulations. Approximately 59% of Indonesia’s workforce is engaged in the informal sector, which is especially common in rural areas. In contrast, Australia’s informal economy is estimated to constitute only 9.8% of the country’s GDP.
Australia’s application of a common law system, with well-documented cases, demonstrates how a clear regulatory framework can prevent prolonged litigation and ensure timely compensation. Precedents ensure consistency in the application of IP laws, deter potential infringers by raising awareness of consequences, and serve as a reference point for adopting legislation to keep up to date with rapidly evolving technologies and societal changes. For example, in cases where two trademarks are deceptively similar, precedents can be applied to similar future cases, making it easier to establish infringement.
Robust protection of IP rights is essential for sustaining and nurturing the creative sector in the contemporary global landscape. Article 28C, paragraph (1) of the 1945 Constitution of the Republic of Indonesia states that “everyone has the right to develop themselves by fulfilling their basic needs, the right to receive education and benefit from science and technology, arts and culture, in order to improve the quality of life and for the welfare of humanity”. This constitutional guarantee implies that intellectual creations, products of scientific, artistic and cultural endeavors, are entitled to legal protection to ensure that creators can fully benefit from the economic value of their work.
Challenges in Indonesia’s IP Enforcement
Developing countries such as Indonesia encounter distinct obstacles in enforcing and applying IP rights, stemming from insufficient legal infrastructure, restricted enforcement resources, and cultural norms. The most significant concerns include rampant piracy and counterfeiting, as well as insufficient enforcement against counterfeit goods products. Infringement of IP is common, leading to disputes that are often resolved in court, sometimes with prolonged litigation. Indonesia’s Patent Law continues to raise concerns, especially about the criteria for patentability of incremental innovations, the procedures for granting compulsory licenses, and the disclosure requirements for inventions associated with traditional knowledge and genetic resources. The unauthorized commercialization of traditional Batik designs in mass-produced products underscores the challenges of protecting communal intellectual property. Batik, a vital aspect of Indonesian heritage, is protected under the Copyright Law of 2014. UNESCO recognized “batik” as part of humanity’s intangible heritage in 2009. Thus moving forward ensuring adequate copyright laws and their effective enforcement will be key in the Indonesian economy.
Batik and Indigenous Australian Art
The protection of Indonesia’s batik designs can be evaluated by examining the legal frameworks used to safeguard Indigenous Australian art under Australian IP law. In Australia, Indigenous Cultural and Intellectual Property encompasses both tangible and intangible aspects of Indigenous cultural heritage, including artworks and traditional knowledge. However, while the Australian Copyright Act 1968 protects individual creations, it does not adequately safeguard communally owned cultural expressions, leading to misappropriation of Indigenous artworks without proper consent or compensation. To address these gaps, institutions like the Australia Council for the Arts have published guidelines on the use of First Nations cultural and intellectual property within the creative industries, emphasizing the importance of consultation. Indonesia has implemented initiatives such as the Batik mark certification, which provides authentication and protection domestically. It is clear that both countries would benefit from developing specific legislation for the protection of traditional cultural expressions.
Proposed Bilateral Framework
Therefore, a bilateral framework between Indonesia and Australia for the protection of traditional cultural expressions is proposed, similar to existing frameworks like the Indonesia-Australia Comprehensive Economic Partnership Agreement (“IA-CEPA”), which promotes collaboration in intellectual property rights. Both nations could establish a working consultation body made up of IP experts, cultural representatives, and policymakers to pinpoint areas that require harmonization and protection. The provisions on intellectual property within the IA-CEPA could be enhanced to specifically address traditional cultural expressions. This bilateral framework should align with international initiatives, such as WIPO’s International Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This proposed framework could effectively protect traditional art in both countries and deepen the continually growing friendship and cooperation between the two nations since the establishment of diplomatic relations in 1949.
Australia’s IP Enforcement as a Model
Australia is widely considered to have a robust framework for protecting patents, trademarks, designs and copyright. IP rights in Australia are protected by federal legislation and common law, including the Trade Marks Act 1995, the Patents Act 1990 and the Designs Act 2003. The government agency responsible for the administration of intellectual property in Australia is IP Australia. They have publicly accessible documents on their website, which provides information on various aspects of intellectual property rights and provides assistance to individuals to enforce their rights. IP disputes are primarily heard in the Federal Circuit and Family Court of Australia and the Federal Court of Australia, with both courts having jurisdiction to handle cases related to patents, trademarks, copyright, designs and plant breeders’ rights. While there is no dedicated IP court, the judges in these courts generally have expertise in IP law.
Australia also imposes harsh penalties for IP infringement, including up to five years imprisonment and fines of up to $99,000 for trademark infringement, and up to five years imprisonment and fines of up to $117,000 for copyright infringement. While Indonesia also imposes harsh penalties, these are often unequally applied due to a lack of legal precedent in cases with similar facts. As seen in the case involving songwriter Ari Sapta Hermawan and singer Agnez Mo, where the court’s decision sparked debates over whether performers or event organisers should bear financial responsibility, the absence of precedent may lead to inconsistent outcomes.
Case Study of Copyright laws for Street Musicians
Copyright Law in Indonesia
In Indonesia, copyright law must contend with deeply rooted traditions of communal artistic sharing. The current framework, governed by Law Number 28 of 2014, mandates licensing and royalty payments for copyrighted works, including cover performances by street musicians. However, this law conflicts with Indonesia’s long-standing tradition of art-sharing and reinterpretation, where music is viewed as a communal rather than strictly commercial asset. The proliferation of digital platforms and social media further blurs the line between cultural expression and commercial exploitation. High-profile cases, such as those involving artists like Tri Suaka and Zinidin Zidan, highlight the growing tension between copyright law and informal performance culture. Additionally, Collective Management Organizations (“CMOs”) responsible for royalty collection struggle to regulate street musicians who perform covers in public spaces, resulting in inconsistent enforcement.
Copyright Law in Australia
Australia’s copyright framework, governed by the Copyright Act 1968, has evolved to address the complexities of the digital era. The Act enforces strict licensing and royalty requirements while also incorporating fair dealing provisions that permit limited use of copyrighted material for specific purposes such as research, study, criticism, review, parody and satire. In practice, APRA AMCOS plays a pivotal role in managing public performance licenses, including for broadcast, communication, public playing, or reproduction of their members’ musical works, ensuring that songwriters, composers and music publishers receive appropriate compensation.
It is clear that both Indonesia and Australia both face challenges in balancing copyright enforcement with cultural practices. In Australia, the fair dealing provisions, while accommodating certain uses, can be restrictive, particularly in relation to non-commercial cultural performances. Reforms have been suggested to broaden these provisions, allowing greater flexibility for informal performers and adapting to the evolving nature of creative expression in an increasingly digital age.
Legal and Policy Recommendations
Indonesia is making progress in strengthening its IP enforcement. The Ministry of Communications and Information Technology has intensified efforts to tackle online infringements by supporting industry-led initiatives, including a list of infringing websites to limit the monetization of such content. Indonesia is considering policy reforms inspired by Australia, such as clarifying the roles of event organizers and performers, where organizers would be responsible for obtaining public performance licenses. Australia’s APRA AMCOS demonstrates an effective model for royalty distribution. Indonesia’s National Collective Management Institute (Lembaga Manajemen Kolektif Nasional or “LMKN”) or analogous institutions could improve by enhancing transparency, refining royalty distribution, and creating a robust digital monitoring platform. Furthermore, collaboration with ASEAN neighbors to harmonize IP laws and enforcement practices is encouraged. ASEAN countries may work together to address IP enforcement issues and share effective strategies, particularly within the informal work sector in order to tackle such issues pursuant to every country’s legal system. Finally, it is vital for legal practitioners, particularly those engaged in IP enforcement, to grasp IP regulations and enforcement mechanisms to guarantee that all cases are heard equitably and consistently. Educational and professional development programs are crucial to ensure that those asserting their rights are treated equally under the law.
Conclusion
In conclusion, while Indonesia’s creative economy presents significant opportunities for innovation and investment, it faces considerable challenges within its IP enforcement framework. These issues include widespread counterfeiting, and a predominantly informal sector that lacks formal protection. By adopting elements from Australia’s IP enforcement model, such as clearer and more transparent registration processes, stronger regulatory bodies like Australia’s APRA AMCOS, and a de facto system based on precedent, Indonesia could further develop a more effective and transparent IP system. This would strike a balance between individual rights protection and community traditions, such as public performance. Consequently, rights holders would gain more certainty in enforcing their rights and fully enjoy the benefits of their innovations.
