PERFORMING RIGHTS AND COLLECTING SOCIETY UNDER INDONESIAN COPYRIGHT LAW: A COMMENT ON THE CURRENT YKCI-ASIRI DISPUTE

(Published in the JIII Yearly Magazine IP COMMUNITY Volume 10 – March 2007)

Article 2(1) of Indonesia Law no. 19/2002 on Copyrights (the Copyright Law of 2002) defines copyrights as exclusive rights given to authors or rights holders to publish or reproduce their respective works. In the context of songs or musical works[1], the said exclusive rights indeed fall into the hands of the songwriters.

The said exclusive rights, as explicitly read in the law, in fact consist basically of two separate yet highly-related rights to perform two distinguishable acts respectively: the right to publish/perform and the right to copy. While the difference between the two lies within the different concepts of publishing and copying a copyrighted work, as has indeed occurred in many cases, the failure to understand such concepts consequently leads to further confusion when copyright protection comes to actual application and enforcement.

Publishing/performing is defined by the law to include reciting, broadcasting, exhibiting, putting on sale, circulating, or disseminating copyrighted works using any possible medium including the internet; or engaging in any act that would enable a copyrighted work to be read, heard, or seen by others[2]. Rights to publish or to perform are often referred to as performing rights

On the other hand, copying is defined as the act of reproducing a particular work, either in its entirety or a substantial part thereof, using identical or different materials, including permanent or temporary transformation of the work[3] (i.e., the mechanical right).

Reproduction of a song or musical work technically occurs every time the song is sung or played, either in its entirety or a single line thereof, and regardless of what instrument, equipment, or arrangements are used for the process. When someone buys an authorized notation sheet or record of Sir Elton John’s Your Song, for instance, that person is actually licensed through this purchase to execute the said mechanical right by playing the song with his or her guitar according to the notation sheet, or by playing the record in his or her own stereo system—both for personal enjoyment.

But one couldn’t care less than to keep his playing of a copyrighted music through a CD he legally bought away from others, or let’s say public, presence. At the time this person sings or plays the song in front of the public, regardless of the number or the commercial nature, through the definition prescribed by the law this person has already moved into publishing or performing a copyrighted work publicly—which is a shift from merely exercising the mechanical rights as authorized, to exercising the performing rights to which he or she is not entitled.

In a real sense, however, while the licensing of mechanical rights by the owner of the work is relatively easy to do through the sales of music records, the situation regarding performing rights is often a bit more complicated. Public performances of musical works could happen just anywhere at any given time since songs are played in hotels, restaurants, cafes, shopping centers, karaoke houses, hospitals, and many other public places. As a result, this would provide significant headaches as to the matter of licensing and collecting royalties. Frankly speaking, if every songwriter must endeavor alone regarding the licensing for public performances of songs, no songwriter could create more songs due to a lack of time.

Here is where organizations called “performing rights collecting societies”[4] are doing what is essentially similar to a work of magic. Instead of licensing their own songs and collecting royalties individually, songwriters gather together in collective societies that in turn do this kind of work on their behalf. Using the common blanket licensing system, a collecting society charges music users a flat rate per annum for a repertoire of songs that the society manages on behalf of the respective songwriters. The royalties are then distributed to the rightful recipients based upon play-lists that are submitted by the music users.

For Sir Elton John & co., life suddenly becomes beautiful again since the collecting societies do all the work and they are able to sit down and relax in an armchair while thinking of other hits to make…

***

For the past 16 years, the role of the performing rights collecting society has been taken by Yayasan Karya Cipta Indonesia (YKCI). This non-profit organization has legal power as assigned by more or less 2,500 local Indonesian songwriters. Being a member of CISAC[5], this organization also represents the interests of thousands of songwriters worldwide with regard to performing rights.

Albeit not for the first time[6], in the past few months YKCI has been forced to fasten its seat-belt as the road is getting bumpier than ever. ASIRI, the national association for the recording industry, put a legal notice ad in a nationwide daily newspaper in mid-2006 demanding YKCI to cease its activities of collecting royalties from business establishments such as shopping malls, hotels, restaurants and the likes for playing music in their premises[7].

 

ASIRI alleges that YKCI has gone too far beyond its actual legal capacity since not every songwriter has assigned YKCI the power to act on his/her behalf with regard to royalties upon performing rights, while there is no mention at all within the Copyright Law of 2002 authorizing YKCI to collect royalties for performing rights from all music users.

 

ASIRI also argues that even though the existence and role of YKCI are still necessary, YKCI should have been collecting royalties from live music performances instead of from the public playing of recorded music belonging to ASIRI members. As the national recording industry association, ASIRI claimed to have a membership of about 80 recording companies. Every company is said to have exclusive rights over every master recording it produces, including the publishing of recorded songs. This is derived from the agreement a songwriter enters into with a record company to record his/her works.

 

This still ongoing dispute actually runs much deeper than a mere dispute between a performing rights collecting society and the recording industry association concerning the performing rights of copyrighted works. YKCI basically acts on behalf of artists and songwriters, whereas ASIRI is obviously a representation body of the recording companies. Indeed, what lies beneath anything that happened between the two is basically no less than the classic dispute between songwriters or artists on one side and the industry on the other side, with regard to the very basic concept of copyright ownership itself.

 

***

 

I think it is quite obvious that if we were to treat the current YKCI-ASIRI dispute as a dispute between songwriters vs. recording companies with regard to copyright ownership issues, we might as well look back to the basic provisions of the Copyright Law of 2002. Once again, Article 1(1) clearly states that copyrights are the exclusive rights reserved only to “the author” or “the assignee of rights.” Indeed, within the context of songs or musical works, the respective songwriters shall always be regarded as the “authors”—thus the owners—of their works.

 

On the other hand, nobody could ever deny the inevitability of recording companies’ role in the modern music industry, which literally turns raw materials in the form of songs from the songwriters into a finished music recording. There is certain added value to the original song thanks to record producers, which is a process that indeed requires considerable investment.

 

The Copyright Law of 2002 also recognizes this importance, and as such has granted what is called “neighboring rights” to producers of sound recordings, thereby granting them exclusive rights to allow or forbid any other party without their consent to copy and/or lend their music or sound recordings. Looking at the scope of said neighboring rights, it should be clear and obvious that producers of sound recordings are granted significant rights to control their works. However, one should also bear in mind that the sound recording over which the producers reserve their rights should be based upon legally acquired songs from the respective songwriters.

 

Nevertheless, in actual circumstances, sometimes every thing that could go wrong seems to indeed go from bad to worse. In some cases, songwriters find themselves in such a weak and disadvantageous bargaining position so as to eventually lead them to submit to whatever the recording producers want them to do – e.g. agreeing on a contractual basis to sell or transfer all rights over a song or music work to the recording producer, including both the mechanical and performing rights thereof. There are also many cases, moreover, where both the songwriters and the producers are not even aware of the copyright provisions in the Copyright Law of 2002.

 

I believe that by providing such a configuration of rules and protections, the Indonesian Copyright Law actually tries to set a balance of rights and interests. Value added to a song or music work that has become a sound recording shall be respected by granting certain exclusive rights to the producer in a way that shall not by any means jeopardize the interests of the respective songwriters.

 

Based upon the above convictions, I am of the opinion that a final and concluding settlement over YKCI-ASIRI is very crucial indeed. Not only would this clarify the position of YKCI as the performing rights collecting society in Indonesia, but far beyond this, it would serve as a perfect device for redefining the vital role of the copyright system itself in bridging the realm of musical creation and the music industry in Indonesia—especially for securing the rights of each stakeholder therein.

 

 


 

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Perihal Prayudi Setiadharma
Prayudi adalah penulis dan kontributor utama situs/blog marimengenalhki.com. Sebagian artikel yang ditulis Prayudi dalam blog ini juga telah diterbitkan dalam bentuk buku berjudul "Mari Mengenal HKI" oleh penerbit Goodfaith Production pada bulan Mei 2010. Prayudi telah menaruh minat yang mendalam pada bidang hukum hak kekayaan intelektual (HKI) sejak mengerjakan tugas akhir di Fakultas Hukum Universitas Padjadjaran, Bandung. Ia lalu memutuskan untuk menekuni minatnya tersebut dengan mengambil program Master of Intellectual Property Laws di University of Melbourne, Australia. Setelah menuntaskan program tersebut, Prayudi lalu bekerja di Law Firm AMROOS & PARTNERS, sebuah kantor hukum spesialis HKI yang berlokasi di Jakarta dan sejak Oktober 2010 berganti nama menjadi AMR PARTNERSHIP, hingga saat ini dimana ia berposisi sebagai Partner.

One Response to PERFORMING RIGHTS AND COLLECTING SOCIETY UNDER INDONESIAN COPYRIGHT LAW: A COMMENT ON THE CURRENT YKCI-ASIRI DISPUTE

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