RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/270
31 May 2001
(01-2721)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
RESPONSES FROM INDONESIA TO QUESTIONS POSED BY
THE EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
By means of a communication from the Permanent Mission of Indonesia dated 28 May 2001,
the Secretariat has received the following responses to the questions posed by the EuropeanCommunities and their member States, as circulated in document IP/C/W/220.
_______________
A. G
ENERAL PROVISIONS
1. Please inform and clarify how and when the relevant Bills on intellectual property which
are currently before the Indonesian Parliament will become laws in Indonesia.
As already advised, there have been six Bills on Intellectual Property Rights submitted by the
Government to the House of Representatives.  Three of them have been approved by the House of
Representatives and become Laws, i.e. on Industrial Designs, Layout-Designs of Integrated Circuits
and Trade Secrets, respectively. These Laws were promulgated and came into force in December
2000.
The remaining three i.e. Bill on Copyright, Bill on Patents and Bill on Trademarks are still
under consideration by the House of Representatives.
2. Please identify relevant amendments of th e notifications with regard to the answers
provided to EC questions 2, 3, 7, 9, 10, 15, 16, 20, 23 and 26 (document IP/Q/IDN/1).
The relevant amendments with regard to the answers provided to question numbers 2, 3, 7, 9,
10, 15, 20, 23 and 26 have already been accommodated in the six Bills as mentioned above.
B. COPYRIGHT AND RELATED RIGHTS
3. Article 1.5 of the Copyright Law (hereafter re ferred to as CL) as notified appears to
provide for "reproduction".  Please clarify which article of the CL provides that a work must be
in a "specific tangible form".1
Provisions which stipulate that a work must be in "specific tangible form" are provided for in
Article 1(2) and Article 11(3) of the Copyright Law (CL).
4. Please explain why there exists a difference in Article 11(3) of the CL as notified in
document IP/N/1/IDN/C/1 and the reply given to EC question 5 (document IP/Q/IDN/1).
                                                     
1 See Indonesia's response to EC question 4 in document IP/Q/IDN/1.IP/C/W/270
Page 2
So far, there is no difference in Article 11(3) of the CL as notified in document
IP/N/1/IDN/C/1 and the reply given to EC question number 5.
5. How can, for example, copyright in a "work" also extend to an "interpretation" of the
work as specified in Article 11(1)(n) of the CL and comply with Article 9.2 of the TRIPS
Agreement? 2
An interpretation of a work of other people must always be conducted with the consent of the
author.  Otherwise, it will be an infringement of copyright.  The interpretation itself is considered as a
(new) derivative work.
6. How is it to "be understood" that authors from countries of the Berne Convention are
automatically protected without an y registration?  What is the position in relation to other
foreign countries, not being members of the Berne Convention, but being members of the
WTO? 3
The protection of copyright is not subject to any formalities. The registration of copyright is
optional, not mandatory.
The provisions regarding the protection of copyright for non members of the Berne
Convention but Members of the WTO have already been accommodated in the new Bill on
Copyright.
7. Why is a limitation of the rights of a transf eree contained in Article 23 of the CL in the
light of Article 11 of the TRIPS Agreement?4
There is no connection between Article 23 of the CL and Article 11 of the TRIPS Agreement.
Article 23 of the CL regards the right-transferee and the stress is on works of carving and painting.
Whereas Article 11 of the TRIPS Agreement provides for rental rights and the stress is on computer
programs and cinematographic works.
8. Does the "transfer of copyright on all works to another party or entity" as set out in
Article 41 of the CL mean that the author is th ereupon divested of his rights?  In the light of
this, how can Article 41(d) of the CL be said to include the exclusive rights granted to a
successor in title in terms of Article 11 of the TRIPS Agreement? 5
In the transfer of rights, moral rights still belong to the original authors and only the
economic rights are replaced.  Article 41 of the CL applies to all works, whereas Article 11 of the
TRIPS Agreement applies only to computer programs and cinematographic works.
9. Please clarify whether or not provisions are foreseen in the CL enabling judicial
authorities to order payment of the right holder's expenses (as opposed to damages) as is
required by Article 45.2 of the TRIPS Agreement.6
Article 42(2) of the CL stipulates that a judge may order payment of damages as much as the
value of the goods.
                                                     
2 See Indonesia's response to EC question 5 in document IP/Q/IDN/1.
3 See Indonesia's response to EC question 8 in document IP/Q/IDN/1.
4 See Indonesia's response to EC question 14 in document IP/Q/IDN/1.
5 See Indonesia's response to EC question 19 in document IP/Q/IDN/1.
6 See Indonesia's response to EC question 22 in document IP/Q/IDN/1.IP/C/W/270
Page 3
Further, Article 42(3) stipulates that the District Court may order delivery of the whole
amount or part of income earned through conducting sermons and other scientific events, or
performances or exhibitions of works resulting from copyright infringement.
10. Where, precisely, in Article 42 of the CL, Article 128A of the Patent Law and
Article 79B of the Trademark Law is provisio n made for the disposal outside channels of
commerce (as opposed to the destruction) of goods as specified in Article 46 of the TRIPS
Agreement? 7
Article 42(4) of the CL stipulates that to avoid further damage to the party whose right has
been infringed, a judge may order the infringer to stop any activities of making, reproducing.
broadcasting, distributing, and selling works or goods resulting from copyright infringement.
C. TRADEMARKS
11. Please confirm whether or not the definitions of "mark", "trademark" and "service
mark" in Article 1 of the Trademark Law of Indonesia, which do not have the elements
provided by Article 15.1 of the TRIPS Agreement, namely that such a mark be
(1) any sign or combination of signs,  and(2) capable of distinguishing the goods or services of one undertaking from those of
other undertakings,
will be modified by Indonesia in the Bill on  Marks which is currently before the Indonesian
Parliament.
8
Article 1 of the Mark Law (ML) is already in compliance with Article 15.1 of the TRIPS
Agreement.  The signs that are covered by the definitions of "Mark", "Trademark", and "Service
Mark" in Article 1 of the ML can be in the form of  a picture, name, word, letters, figures, colour,
composition or combination of said elements which have distinguishing features.
The provisions in Article 1 as mentioned above will not be modified in the Bill on Marks
already submitted to the House of Representatives.
12. Where in Article 51 of the Mark Law (her eafter referred to as ML) is a provision
conforming with the requirements of Article 19.2 of the TRIPS Agreement to be found? 9
The provisions that are in compliance with the requirements of Article 19.2 of the TRIPS
Agreement are not found in Article 51 of the ML.  However, similar requirements as referred toArticle 19.2 of the TRIPS Agreement can be found in Article 47 of the ML.  According to Article 47
of ML, the use of mark registered in Indonesia by another person (in this case "the Mark Licensee") is
considered as the use of said mark by the owner of registered mark.
13. What is the basis for "a period of five years after the date of registration of the mark" in
the TRIPS Agreement?
10
The basis for "a period of five years from date of registration of the mark" as referred to in
paragraph 1 of Article 57 of the ML is Article 6bis(2) of the Paris Convention.  According to this
                                                     
7 See Indonesia's response to EC question 23 in document IP/Q/IDN/1.
8 See Indonesia's response to EC question 28 in document IP/Q/IDN/1.
9 See Indonesia's response to EC question 29 in document IP/Q/IDN/1.
10 See Indonesia's response to EC question 30 in document IP/Q/IDN/1.IP/C/W/270
Page 4
Article, a period of at least 5 (five) years from the date of registration shall be allowed for requesting
the cancellation of such a mark.
14. Is the fact that there are no specific provisional measures to prevent trademark
infringements in the form of a separate injunc tion procedure not in compliance with Article
50.1(a) of the TRIPS Agreement?  If so, will the Bill currently before the Indonesian Parliament
rectify this position?11
There is no clear provision under the ML regarding with the provisional measures as referred
to in Article 50.1(a) of the TRIPS Agreement.  Most of the provisions in Article 50.1(a) of the TRIPS
Agreement are provided in the Custom Law, especially in Articles 54 to 60.  The Bill on Marks will
rectify this position.
15. What is the basis in the TRIPS Agreement fo r the provisions of Article 74(2) of the ML
which, as stated by Indonesia, regulate that the court may order the delivery up of infringing
goods or the value of goods after the court's deci sion has been final and binding and "after the
plaintiff has paid the defendant the price of the goods"?12
Article 59 of the TRIPS Agreement is the basis for the provision of Article 74(2) of the ML
which provides the possibility for the court to order the delivery up of infringing goods or the value of
goods by the defendant to the right holder.  In practice the court may order the delivery up of
infringing goods without any compensation.
D. PATENTS
16. Please clarify whether or not, according to Article 122, the right holder will have to
demonstrate that actions by third parties were made "deliberately".13
The right holder does not have to demonstrate that the actions by third parties were made
deliberately.  However, the third parties do have to demonstrate that the actions were not made
deliberately.
17. Please indicate which provisions of the Bill on Patents implement Articles 31(i), 31(j) or
31(k) of the TRIPS Agreement.14
Articles 75 and 76 of the Bill on Patents contain the provisions for the implementation of
Articles 31(i), 31(j), or 31(k) of the TRIPS Agreement.
18. Please clarify to what extent Article 81 of the Indonesian Patent Law provides that the
authorisation of a compulsory licence shall be considered on its individual merits.14
Provisions regarding the authorization of a compulsory licence can be found in Articles 81 and
Articles 83 of the PL.
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11 See Indonesia's response to EC question 32 in document IP/Q/IDN/1.
12 See Indonesia's response to EC question 33 in document IP/Q/IDN/1.
13 See Indonesia's response to EC question 36 in document IP/Q/IDN/1.
14 See Indonesia's response to EC question 40 in document IP/Q/IDN/1.