ASOSIASI INDUSTRI SEPEDA MOTOR INDONESIA

05/04/2011 22:00 Categori: News
By: Syafrinaldi, Pekanbaru, Riau

Protecting intellectual property rights

Human rights are the basic rights owned by a human being from birth. These rights have been recognized by the international community. States are obliged to respect human rights and lay down rules and regulations to protect the people.

The aim of protecting human rights is to respect and recognize the dignity of human beings. The freedom to live and the freedom of speech and opinion are among the basic rights practiced and respected by many nations for centuries.

Since independence until the resignation of president Soeharto in 1998 the 1945 Constitution gave a narrow space for the protection and acknowledgement of human rights. Even the government did not respect and recognize the civil and political rights of citizens as enshrined in the Constitution.

The fall of the Soeharto government, the ensuing sweeping reforms and the increasing international politicization of human rights at the United Nations marked the start of Indonesia’s respect for human rights by ensuring freedom of speech and opinion.

For those reasons the Constitution was amended to strengthen and recognize a wider concept of human rights in line with international law.

As far as human rights are concerned, the Constitution includes not only civil and political rights but also rights relating to intellectual property as stipulated in article 28G (1) and Article 28H (4).

Both articles assert rights relating to the protection of property, including, of course, intellectual property.

The Constitution stipulates that the protection, advancement, upholding and fulfillment of human rights are the responsibility of the state, especially the government.

Although the Constitution does not per se refer to intellectual property rights, that omission does not mean that there is no constitutional protection for intellectual property rights as a part of human rights as recognized in Universal Declaration of Human Rights (UDHR).

According to Article 27 (2) of the UDHR: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The article protects not only the moral right of an author but also his or her economic right.

Similarly the Constitution protects both the moral and economic rights of authors.

To strengthen protection of human rights, the Indonesian government enacted the 1999 Law on Human Rights. It must be noted that in accordance with the law, human rights must be respected and guaranteed with the aim to enhance the welfare of the people.

Every state must guarantee the protection of human rights by laws that must be in conformity with the international law. The question now is why should intellectual property be protected by law.

There are many theories that can be offered as justification. One is that intellectual property is a personal property and laws could benefit the right’s holder both morally and economically.

The government has played and will always play an active role in encouraging the development and advancement of industries to compete nationally and internationally in trade.

This is evinced by its ratification of the agreement establishing the World Trade Organization, which covers the Agreement on Trade Related Aspects of Intellectual Property Rights, in 1994.

In conjunction with the WTO, Indonesia enacted seven laws concerning intellectual property rights, the 1992 Copyright Law, the 2001 Patent Law, the 2001 Trademark Law, the 2000 Protection of Plant Varieties Law, the 2000 Trade Secret Law, the 2000 Design Industry Law No. 31/2000 and the 2000 Integrated Circuit Law.

In the 1980s and the 1990s, the international community was frustrated by the poor protection of intellectual property afforded by developing countries. Indonesia was regarded as a nation that gave scant legal protection to intellectual property.

This was for two main reasons. First, there were few scholars who were aware of the moral and economic significance of the protection of intellectual property. They thought that intellectual property belonged to only developed countries.

Second and more importantly, they thought developing countries had no interest in intellectual property development and its economic impact.

In that era, Indonesian law provided protection only to copyrights, patents and trademarks. Other fields such as plant varieties, trade secrets, design and integrated circuits were left uncovered. It seems that developing countries were not aware of the economic interest vested in intellectual property.

Intellectual property is a money maker. On these grounds it is compulsory for all nations in the world to ensure legal protection are provided to intellectual property at any cost. Intellectual property has become an instrument for all nations’ economic development and growth.

Massive breaches of copyright law occur in Indonesia, especially in the use of pirated computer programs. Indonesia is the world number four illegal user of computer programs. It means more than 85 percent of the computer programs circulating in Indonesia are illegal. Pirated copies of CDs, DVDs or cassettes are also found easily in every corner in Indonesia.

It cannot be argued that despite these laws the government lacks the commitment to provide a legal certainty for the conduct of business in the country.

The weak implementation of laws regarding intellectual property has resulted in vast economic injury to Indonesia.

The infringement of laws related to intellectual property rights means a breach of human rights. Therefore the government needs to take real and coercive action to enforce the law and combat piracy so that the holders of intellectual properties can contribute to economic development.

The writer is a professor of law and the postgraduate program director at the Islamic University of Riau, Pekanbaru.