The Proliferation of Online Piracy of Film in Indonesia: Obstacles to Enforcement of Copyright Law and Possible Solutions By: Raushan Aljufri as Staff of Legal Research and Development ALSA LC UI 2018
Film Piracy has always been an issue plaguing the movie industry, cutting into the profits of both foreign films as well as domestic films. This form of copyright infringement has flourished in Indonesia, with rates of piracy reaching incredible heights. While piracy has always existed in Indonesia since the days of CD's and DVD’s, the availability of the internet has dramatically increased the rates of piracy worldwide. The Internet’s reach, as well as its ease of access has made piracy much cheaper and plentiful than ever before. In addition, the nature of the internet has led to more difficulty in actually enforcing copyrights as well. This article shall explore the extent, size, as well as the effects of online film piracy, both globally and in the domestic market. Furthermore, this article shall explore the factors that have led to such high levels, as well as the technological, legal, and practical obstacles to the enforcement of copyright protections to films made. This article shall conclude with possible policy solutions in order to address this pressing issue. Before we continue, we first need to explain about copyrights. According to Law No. 28 of 2014 Concerning Copyrights, Copyrights are the exclusive rights that the creators of certain works possess.1 In Article 4, it is explained that these exclusive rights are divided into two types of rights, moral rights, and economic rights. Moral rights are the rights of creators to put their name in connection of the work, to use aliases, to change the content of their work, to change the titles of such works, as well as the right prevent distortions to such works. 2 Economic rights are the exclusive right of copyright owners to profit from their works. 3 Any violation of these exclusive rights is called copyright infringement (Pelanggaran Hak Cipta) Piracy itself is a form of copyright infringement, defined in Article 1 Paragraph (23) of that law as “a multiplication of works and / or products related rights unauthorized duplication
and distribution of goods referred extensively to gain economic advantage”. Film piracy can take place through various forms of media. Traditionally, it came in the form of illegal copying and distribution of so-called ‘hard goods’ such as videocassettes and optical media (VCD and
1
See Law of Republic Indonesia Number 28 Year 2014 Concerning Copyrights, Article 1
Paragraph (1). 2
See Law of Republic Indonesia Number 28 Year 2014 Concerning Copyrights, Article 5.
3
See Law of Republic Indonesia Number 28 Year 2014 Concerning Copyrights, Article 8.
DVD). However, the development of the internet has also led to internet piracy, which can involve commerce and the sharing of digital content through downloads, streams, and most worryingly of all through peer-to-peer technology (P2P). The scale of this problem is staggering. For example, in Indonesia an estimated 95 percent of all films are pirated and illegally obtained, in various forms of media.4 The development of the internet has of course changed the nature of piracy. In recent times, rates of piracy have rapidly increased, due to the ease of use and accessibility of the internet. These have been done through illegal downloads, streams, and most worryingly of all through the use of P2P technology, which presents technical and legal challenges to enforcement of copyrights.5 Peer-to-peer (P2P) technology are a set of technologies that enable users to download digital files directly from each other, rather than from a central server. 6 There are many such services, the most popular among them being the BitTorrent protocol. The size and scale of internet piracy are quite worrying. In the Asia-Pacific, an estimated 37.63% percent of all traffic on the internet are traffic used by BitTorrent applications at peak hours.7 This has led to incredible losses in the movie industry. Considering the popularity and global reach of the American movie industry, we can see the effect of piracy on this particular industry. The Motion Picture Association of America (MPAA) in 2008 has estimated losses of 6.1 billion dollars worldwide due to piracy. 8 In Indonesia itself, a 2017 study by the University of Indonesia’s Institute for Economic and Social Research (LPEM FEB
4
W. David Walls, "Cross-country analysis of movie piracy" Applied Economics 40, no. 5
(2008), Pg. 625-632. 5
Darrell Panethiere “The persistence of piracy: the consequences for creativity, for culture,
and for sustainable development” (Report commissioned by UNESCO and presented to the Intergovernmental Committee of the Universal Copyright Convention, Paris, June 2005), Pg. 18-19. 6
Natasha Culzac, “What Is Bittorrent? a Short Description of the File Sharing Protocol”
The Independent, (26 September 2014), https://www.independent.co.uk/life-style/gadgets-andtech/news/what-is-bittorrent-a-short-description-of-the-file-sharing-protocol-9758805.html accessed June 23rd 2018. 7
Ernesto, “BitTorrent Still Dominates Global Internet Traffic” TorrentFreak, (26 October
2010), https://techcrunch.com/2015/05/28/netflix-hbo-streaming-video-traffic-increases-as-bittorrentdeclines/ accessed June 23rd 2018. 8
Carl Bialik, "Putting a Price Tag on Film Piracy", Wall Street Journal, (14 March 2016),
https://blogs.wsj.com/numbers/putting-a-price-tag-on-film-piracy-1228/ accessed June 24th 2018.
UI) reported losses of Rp. 1.5 trillion (US$ 107 billion) to the Indonesian movie industry due to piracy. 9 Indonesia has passed national legislation to regulate copyrights, including civil and criminal liability for conducts of piracy. Law No. 28 of 2014 Concerning Copyrights has set out the exclusive economic rights of copyright holders, among these being the exclusive right to reproduce of a copyrighted work, as stated in Article 9 Paragraph (1)(b). In pursuant to the previous article, Article 113 Paragraph (4) sets out that any violations of Article 9 Paragraph (1) letters a, b, e, and / or the letter g done in the pursuit of Piracy may be punished with to a penalty of 10 (ten) years and/ or a maximum fine of Rp4.000.000.000,00 (four billion rupiah). In addition, Indonesia is party to international treaties regarding Intellectual Property, including treaties with provisions regarding copyright infringement and piracy. As a party to the Berne Convention for the Protection of Literary and Artistic Works, 10 Indonesia has obligations under international law to protect all copyrighted works, including Films, of all nations that are also a party to the convention. Copyrighted material recognized by other nations that are a party to the convention must be treated as if it were copyrighted in Indonesia as well.11 However, the evidence clearly points out that Indonesia has long ways to go before achieving a satisfactory level of copyright enforcement. The obstacles to full enforcement are many, both legally as well as practically. Part of the reason is the low awareness of the existence of copyright laws themselves among the general population. According to an opinion poll conducted by the Directorate General of Intellectual Property Rights, 77% of respondents were found to have a low level of knowledge regarding intellectual property laws. Society in general were found to have incredibly low knowledge regarding this issue, leading to high levels of piracy, plagiarism, imitation, forgeries, as well as other forms of copyright enforcement. 12
9
Tribun Jogja “Akibat Pembajakan, Industri Film Indonesia Mengalami Kerugian Rp 1,4
Triliun di 4 Kota”, (3 May 2018), http://jogja.tribunnews.com/2018/05/03/akibat-pembajakanindustri-film-indonesia-mengalami-kerugian-rp-14-triliun-di-4-kota accessed June 23rd 2018. 10
See Presidential Decree No.18 of 1997.
11
See Berne Convention for the Protection of Literary and Artistic Works Article 5 Paragraph
12
Triyanto, “Copyright Law Enforcement: An Indonesia Case Study” Journal of Intellectual
(1).
Property Rights, Vol 22, (September 2017), pg. 276-284.
Attempts to change legislation has also failed to create the desired effect. This is also caused by the general incapability an unwillingness of law enforcement apparatus to enforce copyright laws themselves. This can be seen in ineffectiveness in the changes of the copyright laws themselves. In the current copyright law, Law No. 28 of 2014 Concerning Copyrights, Article 120 stated that all criminal offences in the law compromises Complaint-Based Offences (Delik Aduan), meaning that any attempt by law enforcement to enforce these copyright laws must first be preceded by a complaint from the party receiving losses, in this case, the copyright owners themselves. This in itself was a change from the previous law, that is, from Law No. 19 of 2002 Concerning Copyrights, where the criminal offences stated in that law are Ordinary Delicts (Delik Biasa). This was made as an attempt to empower law enforcement to proactively enforce copyright laws, by removing the requirement for a complaint to be filed by copyright owners before police can take any actions. However, this previous law was ineffective because of the conduct of law enforcement themselves. Police official would find sellers of pirated material, but rather than enforcing the law, they would often use the threat of prosecution contained in this law to force these sellers to pay fees to the police themselves. Only those unable to pay would be prosecuted for these crimes.13 It is these tactics by the police that has caused lawmakers to make criminal offences under Law No. 28 of 2014 Concerning Copyrights to become Complaint-Based Offences. This is merely one example of the incapability of law enforcement to enforce copyright law. Even in cases where police and prosecutors actually pursue cases of piracy, the sentences given by judges are often light and lax. For example, in one case in Yogyakarta, a man was found to be guilty of violation of Article 114 in conjunction with Article 10 of Law No. 28 of 2014 Concerning Copyrights. The man had sold hundreds of copyrighted CD’s and DVD’s for profit. However, the man was merely sentenced with a Rp. 30.000.000 fine or 4 months confinement, far from the maximum of Rp. 100.000.000 in this case 14. The lax sentences given for copyright infringement may cause this law to have an insufficient deterrent effect, not nearly enough to deter people from committing such crimes again in the future. Regarding online piracy, another example can be seen by the low numbers of online websites distributing and giving access to pirated materials blocked by the Ministry of
13
Hukum Online, “Hindari Polisi Nakal, RUU Hak Cipta Gunakan Delik Aduan”, (4 June
2015), http://www.hukumonline.com/berita/baca/hol19115/fiksi-hukum-harus-didukung-sosialisasihukum- accessed on June 23rd 2018. 14
See Yogyakarta District Court Decision No. 35/Pid.Sus/2016/PN.Yyk.
Communication and Information. Article 54 of Law No. 28 of 2014 Concerning Copyrights provides the authority for the government to monitor the creation and distribution of copyright infringing works, to coordinate with other bodies to prevent copyright infringement, and to monitor the recording of copyrighted works in venues showing such works. This authority expanded further in Article 55, which grants the government the authority to block websites that are known to distribute and make available copyrighted content illegally. Anyone may be able to report any incident of online piracy to the Minister of Communication and Information, and after a verification of the report, the ministry is able to block any such content. However, in practice, this is rarely done. Only around 250 websites have been blocked by the ministry. 15 This pales in comparison to the number of copyrighted materials available online. This is also highlighted by the fact that the ministry has been able to block 983.000 websites for pornographic content16, a significant number compared to the number of websites blocked for distributing pirated content. More worryingly of all, stopping film piracy in itself is very difficult even if these problems were solved. This is because of the technology behind film piracy itself. As stated previously, it has become popular for consumers of pirated media including films to use P2P technology such as the BitTorrent protocol to share illegal films. This technology does not require any central server to operate. It works on different principles. The P2P technology works by breaking up the files into thousands of pieces. Users wishing to download the material (known as lechers) can join networks with thousands of users, downloading these pieces from other computers in the network (known as seeders) Simultaneously, any pieces already downloaded by the user will also be uploaded to other users in the network. This way, there is no one central server with one connection to the user, rather, there are thousands of users simultaneously downloading and uploading the material without needing any central server. This makes it impossible for law enforcement to target one central server. The technology itself
15
Imam Hamdi, “Situs Pembajak Film Rugikan Industri Kreatif Global Rp 3,77 T” Tempo,
(17 Oktober 2017), https://bisnis.tempo.co/read/1024134/situs-pembajak-film-rugikan-industrikreatif-global-rp-377-t accessed June 23rd 2018. 16
Kementerian Komunikasi dan Informatika Republik Indonesia “Menkominfo: 983.000
Situs Porno Telah Diblokir”, (6 Februari 2012), https://www.kominfo.go.id/content/detail/1153/ menkominfo-983000-situs-porno-telah-diblokir/0/berita_satker accessed June 23rd 2018.
makes it so that any attempt to stop the sharing of these files will be fruitless.17Unfortunately, there has not been any solution found to tackle this particular issue. P2P networks are simply too large and too numerous to be able to be stopped. However, there have been attempts to block websites that distribute the links to torrent networks themselves, websites such as the Pirate Bay and such, but because these websites often operate on servers in secluded countries, it has proven difficult for nations to stop these websites. There are a few novel legal questions that come from the use of P2P technology. Among these are questions such as are users in a BitTorrent technology liable for distributing copyright?; are websites which merely supply links to torrent networks liable even if these websites do not operate any servers that distribute the content themselves?; are Internet Service Providers liable for allowing P2P traffic across their networks? These questions are legal grey areas which have never been tested in Indonesian courts. There is also no regulation in of itself to regulate these cases. An additional factor that has not been discussed is the price disparity between pirated goods and the original goods, which can be substantial. Indonesia is a developing country, with its people making a relatively low income. As these people cannot afford the legal copies of films, they often resort to piracy. In addition, the legal avenues to purchase films are minimal. 18 It is more often easier to pirate a movie then it is to buy legally. Internet piracy is also convenient compared to buying physical goods, which leads to increased rates of piracy. When looking at the issue, we can come across to possible policy solutions. First of all, there must be an attempt to educate the people on intellectual property rights itself. Most of the time, they do not know that their conduct is illegal. The culture of the people is the main cause of piracy, especially due to the fact that most people do not feel that their conduct is criminal.19 This effort can be done through things such as ad campaigns. For example, in 2007 the United Kingdom launched a $6 million dollar ad campaign to educate people about piracy. A survey
17
Natasha Culzac, “What Is Bittorrent? a Short Description of the File Sharing Protocol” The
Independent, (26 September 2014), https://www.independent.co.uk/life-style/gadgets-andtech/news/what-is-bittorrent-a-short-description-of-the-file-sharing-protocol-9758805.html accessed June 23rd, 2018. 18
Triyanto, “Copyright Law Enforcement: An Indonesia Case Study” Journal of Intellectual
Property Rights, Vol 22, (September 2017), pg. 276-284. 19
Ibid.
found that after the campaign, higher percentages of people stated that copyright theft is “nothing to be proud of” and that it is “embarrassing” to purchase illegal DVDs 20 In addition, there needs to exist an effort to make law enforcement officials properly enforce copyright laws. There exist many problems that have made law enforcement officials lax in enforcing copyright laws. While for the most part, the legal instruments for enforcing copyright laws exist, the actions of law enforcement bodies have been ineffective and improper. This, in conjunction with the general disregard of copyright laws by society have made piracy a difficult problem to solve. Nevertheless, these issues must be rectified in order for copyrights to be more rigorously enforced. From the perspective of the copyright holders themselves, they can take a few measures to reduce piracy, by providing more affordable, legal avenues for people to purchase their copyrighted material. This can substantially reduce the rates of piracy. For example, a report in the United Kingdom by the Intellectual Property Office (IPO) found that when users were given access to legal streaming services, such as Netflix, rates of piracy fell substantially. In 2016, when the study was conducted, 44% of internet users are using exclusively legal means, up from 39% at the end of 2015.21 These measures should hopefully reduce the rates of piracy. While in Indonesia, piracy seems like a difficult, substantial problem, by looking at measures that have been taken by other nations, the rate of piracy may be reduced. Considering that intellectual property enforcement can often make a nation more attractive for foreign investment, as well as improving the rule of law in Indonesia, these measures shall make Indonesia all the better.
20
James Marshall Crotty, “Education Is Best Weapon Against Web Piracy, not SOPA”,
Forbes Magazine, (31 January 2012), https://www.forbes.com/sites/jamesmarshallcrotty/2012/01/31/ better-than-sopa-public-education-best-weapon-against-web-piracy/#3b023f994228 accessed June 28th , 2018. 21
James Titcomb, “Internet piracy falls to record lows amid rise of Spotify and Netflix”, The
Telegraph, (5 July 2016), https://www.telegraph.co.uk/technology/2016/07/04/internet-piracy-fallsto-record-lows-amid-rise-of-spotify-and-ne/ accessed June 18th, 2018.