I.

INTRODUCTION FACTS
Indonesia Copyrights Foundation, YKCI (Yayasan Karya Cipta Indonesia),

which is established in 1991 is an organisation that is famous for collecting royalty for the song writers. YKCI as a nonprofit law institution is a collective society. It is the holder of the songs copyright and the authorizer in managing the privilige rights of the song writers both local and international artists. The rights is in particularly related to the economical right (the right that is owned by the creators to gain profit from their creation in the form of money that we called royalty) in broadcasting the songs and music, giving lisence to people who want to use it in the commercial purpose, and also collecting royalty from the people who use the songs in the commercial matters. The YKCIs authorization as the holder of song copyright is in organising the privilege of the song writers based on the Indonesia Republic Law number 19 year 2002 on the Copyright, Agreement, and Indonesian creator Authority, Reciprocal Agreement with a typical organizations in more than a hundred countries. It is approved that YKCI is the only holder of Songs Copyright and international music in Indonesia. YKCI is also a member of international organization of copyright protection which is The International Confederation of Societes of Authors and Composers (CISAC) in Paris. YKCI sued PT TELEKOMUNIKASI SELULAR (TELKOMSEL) related to the Ring Back Tone. YKCI assume that this foundation is the holder of the copyrights based on the copyright allocation and cooperation agreement with the song writer that stated that YKCI is the exclusive holder of the song copyright. YKCI as the prosecutor claimed that they have the obligation to manage the songs, as it is mentioned in the performing right, to give license to the song user and to collect royalty of the using of the song. YKCI stated that Telkomsel has broadcasted the song without their permissions. Furthermore, since 1 September 2004 until 31 Juli 2006 Telkomsel had never paid any royalty to YKCI from the song they broadcasted in the RBT service. The loss that is cost is Rp 78.408.000.000 (seventi eight billion four hundred eight million rupiah). However, Telkomsel answered the sue, based on their evidence, with the statement that YKCI does not have any law qualifying to be a prosecutor or Legitima persona in standi judicio. This statement is based on the former YKCIs first suit that declare YKCI as the holder of the copyright and YKCI is capable to proceed the

Page | 1

performing rights based on the power of attorney from the song writer. Telkomsel firmly denied this statement from YKCI since the role of YKCI is not more than the attorney receiver from the song writer to managing some bussiness related to the work based on the Law Number.19 year 2002 about Copyrights Article 3 Subsection 2 instead of having the full right in the songs copyright. Telkomsel stated that the suit that is proposed by YKCI is miscarriage (error in persona) since Telkomsel never had any law interaction with YKCI related to the songs that are broadcasted in RBT service. Telkomsel have made a legal agreement with 13 record companies which are PT.Sony BMG Entertainment Indonesia, PT.Warner Music Indonesia, PT.Universal Music Indonesia, PT.Aquarius Musikindo, PT.Dian Pramudita Kusuma, PT.Cipta Suara Sempurna, PT.Indo Semar Sakti, PT.Arga Swara Kencana Musik, PT.Virgo Ramayana Record, PT.Sani Sentosa Abadi, PT. Prima Lintas Utama Sentosa, PT.Musika Studios and PT.EMI Music (EMI) based on the Agreement for the provision of the content for Ring Back Tone. Based on those evidences, The judges decided to accept the exception of Telkomsel and stated that the provition sue acclaimed by YKCI is unacceptable, therefore the YKCI should pay for the case in Rp.5.000.000 (lima juta rupiah). YKCI objected the judge decision by proposing cassation to Supreme Court with case number 018/K/N/HaKi/2007 with the same claim as the one they proposed in the Commercial Court Central Jakarta. However, the Supreme Court stated that the judex facti decision in this case obeys the law and legislation so that the cassation of YKCI is declined. YKCI then punished to pay the case in the cassation level.

II. ISSUES
2.1

How is the protection system of Ring Back Tone (RBT) related to the

Intellectual Property Rights in Indonesia, based on the Law number 19 year 2002 about copyrights?
2.2

How is the position and rule of all the parties related into the royalty collection

for ommercial purpose? ( Supreme Courts verdict No. 018 K/N/HAKI 2007, court of justice case between YKCI versus PT. Telkomsel)

Page | 2

III. RULES Regulations on Intellectual Property Rights in Indonesia of copyrights in Indonesia

3.1 Law

Copyrights law is first regulated in Law No. 6 year 1982 about copyright, then is changed by law No. 7 year 1987. In 1997, Copyrights law is changed again by Law No. 12 year 1997. Then in year 2002 it has a final changed into Law No. 19 year 2002. 3.2 Government Regulations Indonesia Republic Government Regulation Number 1 year 1989 date 14 January 1989 about translation and/or multiplication of creation for the education, scients, researchs, and developments purpose. 3.3 Ministerial Regulation Indonesia Republic Justice Minister Regulation Number M.01-HV.03.01 Year 1987 date 26 October 1987 about Creation Registry. IV. ANALYSIS 4.1 Protection System of Ring Back Tone (RBT) Based on the Article 12 Law Number 19 year 2002 said that the creations that are protected are the creations in the field of education, art, and literature included in the item (d) that mentions song, or music with or without lyrics. This article is basicly stated that the copyright is a privilege for the creator or the holder of the copyright to announce or to multiply their works with no violating the law. It is also explicitly explained that what is meant by announcing the works are an effort to broadcast, exhibit, sell, distribute the creation with every kind of media include internet so that the work can be recognized by the society The songs that become the RBT product is a creative idea that has a unique artistic value and have a law protection that should be aware of RBT is the replacement for dial tone to be heared by the one who call the RBT users and this is a peformance act since the callers never make any copy in their handset but ony hear the song. Playing the song is an action to express the substance of the creation soa that it can be listened by public, and this action is definitely an action of announcing the creation.

Page | 3

The Article 2 verse (1) Indonesia Republic Law No 19 Year 2002 explains: Exclusive rights is the rights that is only for the holder so that there is no other party can gain a profit without any permission. The meaning announcing or multiplying the creation, in violating the copyright is also including the act of translating, adapting, arranging, recreating, seling, renting, lending, importing, displaying, broadcating, recording, and communicating the creation to the public by all media. In the previous explanation, it is also stated that there is no exception in any kind of format and packaging in the violation of copyrights since it is clarified that the act of multiplying and announcing the creation is can be done by all media. The ownership right of the fictation (master) and the agreement which is multiinterpretation have made the label producer have the courage to make a transaction related to RBT with operator of cellular telecommunications services. The labels did not assume that they violate the copyright. Some of the user say that RBT is a new kind of bussiness that the customer access the product by the virtual media so that it is impossible to put the name of the song writer. Therefore instead putting the name literally, it is put into specific codes in order to ease the consumer to access. The changing marketing technique is allowed as long as it is not against the law. However, in RBT there is an act of mutilation in the creation that is used. The song that is used in RBT is only a part of it. The cutting or mutilating song for the RBT purpose should also be reported to the song writer. It will not make any problems in the future if the replacement of song writers name into codes and the cutting length of the song to be put in RBT have a written agrement from the song writer or it is stated clearly in the contract. 4.2. The position and the role of every sides related to the royalty collecting In RBT there must be a deal between the song writer, the copyright holder and record company, and also the broadcasting institute which in this case is the operator of cellular telecommunications services. According to the Copyright Law article 12 is Broadcasting institute is an organisation that organize the broadcast in the form of law institution that broadcast a work wby a transmition with or without cable or electromagnetic system

Page | 4

The license that is given by the holder of copyright or the right owner related to this case is Record Label. It is regulated in the Copyright Law article 14: Izin atau lisensi yang diberikan oleh pemegang Hak Cipta atau pemegang hak terkait yang dalam hal ini adalah Record Label diatur dalam Pasal 14 Undang-Undang Hak Cipta: License is a permission that is given by the holder of the copyright or the right owner related to the other party to broadcast or to multiply the creation or other related product with certain requirements. Based on the case between YKCI and PT TELKOMSEL which the prosecutor claimed that they are the copyright owner and have the performing right of the songs based on the given power of attorney in the cooperation contract between the song writer as the copyright owner of the song, both the local song writer and the song writer from Respirocal Agreement which are the international copyright owner like BMI, ASCAP (United States) serta BUMA (Holland) to manage the songs. The claim of the prosecutor is against the Copyrights Law number 19 Year 2002 article 4 which states: The copyright holder is the creator as the copyright owner or the recipient of the right from the creator or other parties that further receive the right from the party that own the right This is the abuse of authority done by YKCI. In the article 3 versess 2 in the copyright law it is stated that The Copyright can be diverted completely or partially because of these following reasons a. Inheritance b. Grant c. Testament d. Written contract, or e. Any other causes that is allowed by the law Based on the article in the previous law, YKCI does not have any authority of the songs that TELKOMSEL used as RBT. Hendra Tanu Suryaatmaja, an expert that is presented in the court, said that the record producer automatically owned the right based on what stated in te law. The song writers have given the rights of multiplying and the right o announcing the creations to the record producer in the license giving agreement.

Page | 5

It can be concluded that Telkomsel only needs to cooperate with the producer in order to make the songs as RBT instead of YKCI This RBT bussiness is a rental song bussiness in virtual form. The reason is the user is only using his right of the technologi facility from the related operator of cellular telecommunications services as the compensation of what the customer paid for ordering the song. In the payment of the service, the royalty of all the parties, producer, publisher, song writer, singer, and also arranging have been done. The RBT transaction is categorized as mechanical area and it is impossible to be charged by two royalty. In the mechanical area, the permission of the creation usage is given per title by the song writer and the royalty that is given by the user to the owner of copyright is based on the omset calculation of the selling that is reported regularly by the operator of cellular telecommunications services. The price is based on the contract/ agreement. The court of justice between YKCI and Tekomsel does not have any law quality. It is because YKCI as a the copyright holder announcing the song is never given any authority from the song writer to sue PT TELKOMSEL. The power of attorney letter and the accusation letter is not fulfilling the formal criteria, the claim that is purposed by YKCI is unclear or absurd (obscuur libel), the claim is also miscariage (error in persona) and the accusation is also less support from the related party ( lurium litis consortium). The quality of the prosecutor, YKCI, is not more that a recipient of the power of attorney from the songwriter in order to managing specific purposes (vide Pasal 1792 KUHPerdata), then it can be concluded that as a transition of a copyright from the song writer to YKCI. Given no special power of attorney from the song writer have shown that YKCI does not represent as the representative of the songwriter, as the law consequences of the unqualified YKCI as the holder of copyright and unauthorized to make a claim, YKCI has to pay fine to commercial court for the copyright abuse, stated in the article 56 UUHC. Furthermore, YKCI has also manipulate the fact which claiming themselves having an authorizatiom of the song writer to sue the defendant. In the other hand, it is proven that since the claiming submission YKCI never show any prove as it has a special autorization of the song writer, that can be concluded that they do not have right to claim in the name of the song writer as stated in Yurisprudensi Mahkamah Agung No. 42 K/SIP/1974 tertanggal 5 Juni 1975 (Yurisprudensi No. 42 K). Regarding all
Page | 6

the consideration, then the cassation proposed by YKCI is denied and the decision of Commercial Court in Central Jakarta No. 018 K / N / HAKI / 2007 / PN. NIAGA. JKT. PST., October 1th 2007 is shall be cancelled. Based on the facts, it is precise that the claim of YKCI is denied and YKCI has to pay Rp 5.000.000,00. The case of YKCI vs Telkomsel is ended with the invalidity power of attorney that do not count in the case sunstance. However, the notion of YKCI in sueing adigital activity including the performing activity will be a continuous question that need to be answered for instance, what is the law definition in digition distribution activity of music is effecting on the license that is needed and who are the ones that having the right for royalty. 4.3. Economic Rights One of the rights that is owned by both the creator and the holder of copyright is the economic rights. Economic Rights : The rights to gain the economical profit meand that the creator and/or the copyright holder can get economical profit based n the creation by: Based Reproducing the creation in any forms Distributing the creation to public Renting the creations Translating and adapting the creation Announcing or broadcasting the creation to the public on the explanation above it can be concluded that PT

TELEKOMUNIKASI SELULAR (TELKOMSEL) did not do any action that against the Economic Rights owned by YKCI.

Page | 7

V. CONCLUSION
5.1

Ring Back Tone (RBT) is included in the creation distribution in the digital

system environment. In the execution of RBT, putting a copy in the telecommunication network services that can be used by its consumer is an act of making available to public. Technically, the making of copy (reproduction) toput into the server, so that making and/or copying the record master become available in the telecommunication network service is the rights of the maker of record master (mechanical rights). Meanwhile, when it is played as the replacement of dial tone to be listened by the caller of the user then it is clear that it is a perfomance act since the caller is never made any single copy in their handset, instead the caller is only listen to it. The action of playing the song is an action of reveal the the creation substantion so that it can be heard by public. Then it is can be categorized as an action of announcing the creation. 5.2 Law protection of Copyright is not based on the person who first make the creation, instead it is based on the first person who submit and propose the application to the Intellectual Property Rights. In the case of YKCI as the prosecutor and PT. TELKOMSEL as the defendant, YKCI claimed Telkomsel since the corporation has broadcasted a song that its performing rights is owned by YKCI in the form of RBT without permission. Based on that claim, YKCI should get royalty payment out of the RBT selling. However, the fact that is proved in the court both the first and the cassation shows that the defendant is innocent. It is based on the fact that Telkomsel actually has made a legal cooperation with the Record Label which owns the copyright of the song to distribute it instead of YKCI. Then it can be concluded that YKCI doesn have any rights of the songs and PT. Telkomsel remains innocent.

5.3

Telkomsel have made a cooperation with Record label that has been given

approval by the songwriters who are the real holder of copyright to promote their
Page | 8

worl and YKCI did not have any right of the songs.Seeing the previous statement, it can be concluded that the cooperation agreement made by Telkomsel and Recording Label has been given approval by the song writers. Furthermore, by making the agreement it means that there is a new contract between Record Label dan Telkomsel. Based on the Pacta Sunt Servanda principle (The freedom of making contract principles) the contract is LEGAL since it does not break the requirements of the agreement. VI. RECOMMENDATION 6.1 All the sides should socialize about the copyright and royalty payment so that the society know their obligation while using the song for their own benefits. This act will help and benefit everyone, for example for the ones who use the song will be more careful and more responsible in using others work for commercial. Moreover, YKCI will also get help in doint its job and furthermore it also helps the country to gain more income from the taxes of the copyrights
6.2

The government should emphasize more on how is the role of YKCI as the

intermediary between the song writer and the song user. This act should be done regarding the society have not dully understand the funtioned and the role of YKCI. In the royalty collection, it is almost impossible for the song writers to do it by themselves therefore they need help from YKCI. It is necessary to make a goverment rule in order to clarify the function and role of YKCI.

6.3 There should be a uniformity in the understanding of Copyrights and Royalty collecting, seeing the case, YKCI and Telkomsel did not share the common understanding about Copyrights and Royalty collecting.

Page | 9

BIBLIOGRAPHY WIPO, 2006, Creative Expression-An Introduction to Copyright and Related Rights for Small and Medium-Sized Enterprises (Intellectual Property for BusinessSeries Number 4), Geneva, WIPO

Page | 10