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  • Writer's pictureNick Redfearn

Court applies Indonesian secondary liability rules to digital copyright content

The Indonesian constitutional court has been asked to widen the interpretation of Article 10 of the Copyright law on Landlord liability. A musician and several Indonesian music companies brought the case.  Article 10 was introduced many year ago to provide liability for landlords who allow copyright infringements on their premises. At the time, malls had many shops selling pirated DVDs.

Copyright owners have more recently argued the general wording “manager of trading locations” could be interpreted to include ISPs or other electronics platforms. The point is secondary liability is then created along with a criminal offence to oblige the removal of digital copyright violations.

When reviewing the written decision, you can see that the court felt that the provision was intended to target goods sold in trading locations (it was drafted to help stop pirated DVD sales in Malls). The transition to digital sales of copyright rendered the law obsolete unless it is interpreted more widely. So, the court said section 10 must be read to extend physical locations to digital ones. Therefore content platforms are responsible for illegal copyright infringement on their platforms.

The court spent some time reviewing the criminal provisions of the Copyright law and said that these need should be read with the widened for Article 10 to lead to criminal liability (as it does for physical goods).

The decision is interesting as a court interpretation of the wording by the Indonesian constitutional court, which rarely happens in IP. Most IP cases go to the District (and District Commercial Courts). Presumably these can now enforce criminal liability for ISPs for copyright infringement. Copyright owners will now have a much broader threat for warning letters and takedown requests.

The alternative is to sue under the Electronic Information and Transactions law, which prohibits IP violations on electronic platforms, but liability is differently structured and not criminal. This illustrates the often conflicting situation between IP laws and ecommerce laws, which is common in many countries.

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