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COMPARISON OF INTELLECTUAL PROPERTY RIGHTS BETWEEN INDONESIA AND

MALAYSIA: COPY RIGHTS, TRADE MARK, AND PATENT

CHAPTER 1

INTRODUCTION

A. Context of Study

Intellectual Property Rights is the legal instruments which is giving rights

protection against person because of the creativity result and the form of intellectual work

and give rights to the rights possessor to gain profit from that rights. Those intellectual

property can be in the formed of art, literature, trademark, technology, dramatically,

broadcasting, computer program, etc. By the intellectual property rights, the rights

possessor have rights to use, to multiplicities, to publish, to give permission to others party

for enjoy that certain rights by license or transferring and to prohibit other party to use, to

multiplicities, and to publish it.

In the international society practices, intellectual property rights is one of the

essential issues which must be concerned by the developed and developing state in the

trading or other economic relationship. More, globalization which is really identical with

the free market, free competition, and transparency can give big effect towards the

intellectual property rights for Indonesia. These kinds of situation can be the obstacle of

Indonesia in order to give protection and to make the investor come to Indonesia.The cooperation in legal scope between ASEAN members actually should be the

consequences from the improvement of cooperation intensity in economy, social, and

culture which is stated on Bangkok Declaration in 1967 stated that: to promote regional

peace and stability through abiding respect for justice and rule of law in the relationship

among countries of the region and the adherence to the principle of the UN Charter.

The hottest current issues such as Kecak Dance, Batik, Reog Ponorogo, and others

cases are the reality which is faced by Indonesia and Malaysia. Therefore, As a

neighborhood and on the same clumps, Indonesia and Malaysia also must harmonize the

legal protection of Intellectual property rights. Indonesia and Malaysia can not avoid it. It

happens because intellectual property rights is really essential matter and become issue

which can give effect to the social, politic, and international economy.

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As the writer in this paper, I would analyze the comparison of intellectual property

rights between Indonesia Malaysia especially n Copy Rights, Tade Mark, and Patent. I also

write the broader explanation regarding to the definitions, legal basics and details

explanation which is supporting this paper. This paper is made to fulfill the requirement of

conversion from the student exchange program between Islamic University of Indonesia

and International Islamic University of Malaysia in the period of 2009/2010. Hopefully,

this paper also gives us the guidance to know more deeply about the intellectual property

rights.

B. Statement of Problems

1. How is the comparison of Copyrights between Indonesia and Malaysia?

2. How is the comparison of Trade Marks between Indonesia and Malaysia?

3. How is the comparison of Patent between Indonesia and Malaysia?

C. Objective of Study

1. To know and to understand the comparison of Copyrights between

Indonesia and Malaysia.

2. To know and to understand the comparison of Trade Marks betweenIndonesia and Malaysia.

3. To know and to understand the comparison of Patent between Indonesia and

Malaysia.

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CHAPTER II

ANALYSIS

General Regulation of Intellectual Property Rights:

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STATE NATIONAL

LEGISLATIONS

INTERNATIONAL

CONVENTION

1. INDONESIA Patent:

1.UU No 6 years 1989

2.PP no.32 year 1991 about

Import which is protected

under patent for domestic

medicine.

3.PP no.33/1991 about specific

registration for patent

consultant.

4.PP no 34 year 1991 about

procedure for patent request.

Trademark:

Undang-undang no 19 year 1992

about Brand

Copyrights:

1.UU no 7 year 1987 about

changed of UU no.6 year 1982

about copy rights.


Copy Rights Councils


Translation Creation for

education science, and other

improvement.

1. Act of London, 1934

Convention of Paris for Protection

of Industrial Property of Industrial

Property on 14th March 1883,

revised at Brussels on 14th

December, 1900 at Washington on

2nd June 1911, at the Hague on 6th

November 1925 at London on 2nd

June 1934. (Ratification on 5

August 1948)

2. Paris Convention for the

Protection of industrial Property

20 March 1883, and it is changed

until several times, last changed on

14th July 1967 at Stockholm.

3. Convention Establishing the

World Intellectual Property

Organization, which is signed at

Stockholm on 14 July 197 (WIPO)

- KEPPRES no.24/1979, on 10th

May 1979.

4. Hague Agreement Concerning the

International Deposit of Industrial

Designs, 6th November 1925.

2. MALAYSIA Patent

1.Patents Act 1983 (Act 291) 1st

October 1986.

2.Patents (amendment) act 1986

3. Paten Regulations, 1986

Brand

1. Paris Convention for the

Protection of Industrial

Property, March 20th 1983.

2. Convention Establishment theWorld Intellectual Property

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From the table above, we can conclude that both of Malaysia and Indonesia already

showed their effort to adapt their national legislations with the international convention by:

1. Malaysia changed Copyrights Act year 1969 with Copyrights Act number 1987 Act

number 332 and Copyrights (Amendment) Act year 1990 number 775.

2. Indonesia changed Act number 6 year 1982 with Act number 7 year 1987.

1.Comparison of Copyrights between Indonesia and Malaysia

Creation which is protected

1. Indonesia

Creation which is protected is creation in the science, art, and literature, such as:

(a) Books, pamphlet, and other all of written work.

(b) Speech, lecturing, etc.

(c) Performance such as music, ballet, dance, drama, puppet (wayang),

pantomime, etc.

(d) Choreography, music or song creation whether only instrument and or with

lyrics.

(e) Painting art

(f) Batik arts

(g) Architecture

(h) Map

(i) Cinematography

(j) Photography

(k) Computer program(l) Translation, explanation of passages, interpretation.

2. Malaysia

Literature:

(a) novel, story, book, pamphlet, work draft, poetry, other written work

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(b) Games, drama, performance, film scenario, dance, broadcasting,

pantomime.

(c) History, biography, essay, article.

(d) Encyclopedia, dictionary, reference work.

(e) Lecturing, speech

(f) Table, words compilation, frames (visual and non-visual)

(g) Computer program

(2) art work:

(a) painting, picture, wooden art, etc

(b) map planning, diagram, illustration, sketch

(c) sculptor art

(d) architecture

(e) photograph

(f) industry and art handicraft work

(3) Music Art:

Every art work with the composition

(4) Film

(5) Sound Record(6) Broad Cast

(7) Governance work

(8) Literature, music works which is published

(9) Government or international organization work.

From those explanation above, we can know that Malaysia divide (into literature,

art work, and music art) the copy rights more details than Indonesia. For example:

Indonesia gives copy rights to the painting art, but there are no detail about what kinds of

painting art. In other hands, Malaysia give details explanation and example about the art

work. More, Malaysia not just gives protection to the art work or literature but also to

protect the governance work and games.

B. Period of Protection

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1. Indonesia

(a) copy right valid for long lasting and can be continued 50 years

after the creator pass away against the creation, such as:

(1) Book, pamphlet, and other written work

(2) Choreography

(3) l of art work such as painting work, sculptor.

(4) Batik arts

(5) Song creation or music with text or just instrument

(6) architecture

(b) copy rights valid for 50 years since the first time which is

published:

(1) performance

(2) map

(3) sound

(4) translation

(5) speech, lecturing.

(c) copy rights valid for 25 years since the first time which is

published:(1) photograph work

(2) computer program

(3) adaptation

2. Malaysia

(1) Literature and music work:

(a) copy right valid for long lasting and can be continued 50 years after the

creator pass away

(b) if it is not published the creator pass away, the copy rights valid for 50

years since the first time which is published

(c) anonym, copy rights valid for 50 years from the beginning calendar of

the first publishing.

(2) Art work

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(a) photograph until 50 years from the first calendar which is published

(b) architecture, art work, and literature work

(3) film, sound record, edition, publication, governance work, international

institution work; copyrights valid for 50 years from first time is published.

(4) broadcasting: copyrights valid for 50 years from first time is made.

From those explanation above, we can know that Malaysia give a longer period of

paragraph for 50 years since the first publishing while Indonesia just give 25 years. More,

Indonesia does not regulate about anonym while Malaysia govern about it.

C. Restriction of Copy Rights

(1) Indonesia

Something which is not considered as copy rights violation, such as:

(a) Notice and multiplication of state symbol and original of national song

(b) Notice or multiplication from something which is published by and on

behalf of government.

(c) Take a whole or part of news in television, press, or mass media which is

published 1x24 hours by attaching the complete source.

(d) Quotation and taking the copyrights of person by explained the completesource:

(1) Maximum 10% from the total of creation.

(2) A part or whole for the needs of defense in the court

proceeding, speech, performance which is for free (non-

profit)

(e) Payment of creation in the Braille words

(f) Photocopy of public library, documentation center, science institution

which is non-commercial.

(g) The changes which is based on architecture art

(h) Translation and multiplication of education interest, science, and research

(i) Creation which is contradicted with the government policy in security and

defense sector, social, and public order

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(j) Notice in radio broadcasting or television which is done by the government

for the national interest.

(k) Notice and multiplication photo for the public security and or for the

criminal justice.

2. Malaysia

Something which is not considered as copy rights violation, such as:

(a) Literature

(1) Non-profit research, personal teaching, report for critics, but if that

creation is used generally must be published the title and the author.

(2) Which is expressed in the parody or caricature

(3) Attachment work in the broadcasting, public communication, sound

record or film, if the attachment is made by explain the sources and

the author

(4) Record which is made in the school, university, or education

institution from work which is made by them.

(5) Reading or story in front of the public by someone which explain

the author.

(6) The using of creation based on the order of government for thepublic interest

(7) Reproduction for certain purpose on behalf of government

(8) Reproduction of press or public communication which is published

for the public information.

(9) Broadcasting for public which is voluntarily (non-profit)

(10) Using work for the court proceeding or legal practices

(11) Quote a creation from newspaper or magazines by attached the

sources and author.

(12) Making back up from computer program by and on behalf of the

owner of the copyrights where that back up is made and do not

contradicted with the computer program.

(b) Art Work

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(c) Music work, film, sound record

(d) Broadcasting

(1) Non-profit research, personal teaching, report for critics, but if that

creation is used generally must be published the title and the author;

if that creation is a part of broadcasting.

(2) Record which is made at the school, university, or education

institution from the creation which is a part of that school or

education institution.

(3) Record or publication by someone

(4) Reproduction of press or public communication which is published

for the public information.

(e) Publication edition

(f) Government work and or government organization work.

D. Criminal sanction

Indonesia

(b) by intention and without rights publish or multiplicities a creation is threaten by

imprisonment for 7 years and or fine 100 millions rupiah.(c) By intention publish or sell to public the creation which is the violation of copy

rights, is threaten by criminal sanction for 5 years and or fine Rp 50 millions.

(d) Breach article 16 (creation which is contradicted with the government policy in

security state and defense, social, public order) is threaten by imprisonment for

3 years and or fine Rp 25 millions.

(e) Breach article 18 (multiplication and publication of photograph) which is

threaten by imprisonment for 2 years and or fine 15 millions.

2.Malaysia

(a) - produce in material forms, publish to public in the whole or part of the

original;

- import goods to Malaysia for trading and financial benefits.

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(b) Indirect violation:

1. sell or rent copy of piracy

2. sell, publish , order to be sold or rent of the piracy copy.

3. Distribute the piracy copy

4. Authorize the piracy copy

5. Sell and order to public for the piracy copy.

6. Import to Malaysia, except to be used personally and

domestic for each copy which is made in Malaysia from the piracy copy

7. Make or authorize record or to be used for the violation of

copy rights

8. Cause the certain work become public work.

Those kinds of violation above is threaten by criminal sanction and can be

applied by trade and industry minister, indirect violation is threaten by fine maximally

$10.000 or imprisonment maximally 5 years or both of them for each violation, fine

maximum $20.000 for each violation of copy rights, or imprisonment 10 years or both of

them. In the violation of piracy authorization which is used or violate the copy rights, is

threaten fine maximally $20.000 and or imprisonment 10 years, threat by fine maximally

$40.000 for each case and or imprisonment 20 years.From those explanations above, we can know that Malaysias criminal sanction of

copyrights is bigger than Indonesia. I think, it will give deterrent effect to the actors. More,

the less or little sanction will make the violator did those violations more and more because

the profit is bigger than the sanction itself.

2. Comparison of Trade Marks between Indonesia and Malaysia

A. Regulations

NO. STATE LEGISLATIONS VALIDITY

1. INDONESIA Act number 19 years 1992 1st March 1993

2. MALAYSIA Trade Marks Act 1976

Trade Marks Regulation 1983

The Merchandise Marks Ordinance 1959

1st September 1983

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(Number 10 years 1950)

B. Marks

Indonesia

Based on Act number 19 year 1992, marks is in the form of picture, word,

number, color mixture, or combination of that substances which has difference and is used

in the trade of good and service.

Malaysia

Marks based on Trade marks act 1976 include a device, brand, heading, label,

ticket, name, signature, word, letter, numeral or combination thereof.

From those explanations above, we can know that Indonesia defines the marks

quite general. But, in Malaysia the trademarks also include ticket, name, and also signature.

C. Request for Trademark Registration and the validity

1. Indonesia

After the trademark office had done the examination of registration

requirements and presumes that the applicant already fulfilled it, so maximally 14 days

after the registration request, notice that registration request for 6 months by:

(a)Put the notice board which is specialized provide to be recognized by the

published

(b) Put in the trademark official report which is published periodically by the

trademark office.

During this period until the notice and there are no objection, trademark office

will make substantive examination towards trademark registration request. The

examination will be finished maximally 9 months since: the last date of notice, the last date

of objection. In order to grant the request, the trademark office will:

(c) register that trademark on trademark general list

(d) give the information of request grant to the applicant

(e) give trademark certificates

(f) publish the registration on trademark official report

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The trademark certificate is given to person or legal institution which requested

maximally 30 days since the trademark date on the list of trademark public list.

Based on article 7 Act number 19 years 1992, the validity of marks in Indonesia

is 10 years and after that can be extension based on the regulation. The extension has same

period (article 36 verse 1) and must be requested by the applicant written in the period not

more than twelve months and at least 6 months before the expired.

2. Malaysia

Every person has rights to submit the trade mark request to be registered in the

official for A list or B list. The registration office can reject or accept the request. If the

applicant object with that authority, they can appeal to the court. The trade mark which

already agreed to be registered and advertised. Every person can object towards that trade

mark by written. After that advertisement, there are 3 possibilities for the registration

office: reject that registration request, accept the whole registration, and accept the

registration by requirements.

The validity of marks in Malaysia is 7 years and after that can be extension based

on the regulation.

From those explanations above, we can know that the validity of marks in

Indonesia is 10 years and after that can be extension based on the regulation. It is longerthan Malaysia which just give 7 years although also can be extension based on the

regulation.

D. Trademarks which can not be registered or refused

1. Indonesia

Based on Act number 1 year 1992, Trademarks which can not be registered or

refused, such as:

(a) trademark which is contained of one of substances as follows:

(1) violate the norms and public order which is included by the

using of the religious symbol like Allah and the Prophets.

(2) Has no different

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(3) Related to the goods or services this is requested for the

registration. For example the words coffee or coffee picture

for coffee product.

(4) Already owned by the public. For example: the symbol of

cross in skeleton which describe a danger situation.

(b) The trademarks which the request is rejected by the trademark registration

office if it is contained as follows:

(1) has similarities as a part or whole of others trademark which

already registered previously

(2) Similar to popular person, photos, trademark, or legal

institution which is owned by other person which already

popular except based on the written permission of the

authorized party.

(3) similar to the name, flag, symbol, or emblem, from state,

national or international organization except based on the

written permission of the authorized party.

(4) The imitation or similar to symbol or official emblem except

based on the written consent of the authorized party.(5) Similar to the others creation which is protected by the copy

rights possessor.

2. Malaysia

Part or whole of the trademark can not be registered if:

(a) the using can appear the mystifying the society or violate the law

(c) Contains scandalous words

The Registration office will reject the trademark registration request which

contained patent, patented, by royal letters patent, registered, registered design,

and copyright or other words which has same meaning although it is formed in other

languages and also if that trademark is violated by the minister based on Trade Marks Act

1976.

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If person use the name of other person as trademarks, although he or she still life or

pass away, that person must get consent to the person whose the name is used or the heirs.

From those explanations above, we can know that Malaysia give more details

requirements for something which can not be registered than Indonesia. In Malaysia, some

words which tends to scandalous is forbidden and some words contained patent,

patented, by royal letters patent, registered, registered design, and copyright or

other words which has same meaning although it is formed in other languages also can not

be registered. But in Indonesia, it just prohibit soothing which is similar or already used by

others.

E. Trademarks License

1. Indonesia

The possessor of registered trademarks can give license to others person by

agreement for a part or whole of the products. The licensor still can use by themselves or

give the license to the third party to use that brand. To avoid the license agreement which is

violated by the law or can give damage to the parties and disturb the national economy,

every license agreement must be listed by The Trademarks office on Trademark General

Registration (Kantor Merek dalam Daftar Umum Merek) and is published on Trademark

Official Reports (Berita Resmi Merek)2.Malaysia

In Malaysia, the trademarks license is supervised through registration procedural

of each trademarks use which is permitted by registered user laws in article 48-54 Trade

Marks Act 1976.

Both of the parties (licensor and licensee) submit the written registration request

together to the registration office (regional trademark registration office). The registration

office will examine the material and substance of supervision rights of products quality by

the licensor. The registration office also guarantees that the agreement does not violate the

public policy or regulation. Actually, the license registration is not essential factor for the

validity but just for the licensor interest. It happens because based on Trade Marks Act

1976, the registration trademarks using is presumed that the trademark is used by registered

trade marks proprietor.

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3. Comparison of Patent between Indonesia and Malaysia

A. Regulations

NO. STATE LEGISLATIONS1. INDONESIA Act number 6 years 1989

2. MALAYSIA Patents Act 1983 section 11

B. Characteristics of patent which is protected

1.Indonesia

Based on article 2 Act number 6 years 1989, patent will be given as follows:

(a) novelty

Novelty does not recognize new if that invention is already published in

Indonesia or outside of Indonesia.

(b) inventive step

If that invention for person who has general skill about technique is something

which can not be presumed before

(c) industrial applicability

If that invention can be produced or can be used in industrial. (article 6 At

number 9 years 1989)

2.Malaysia

(a) novelty

Something is recognized as new if than invention can not e used as prior art.

Prior art contains all of the things which is published everywhere in the world or in

Malaysia by written, or oral, using. (Act, section 14 (1) and (2)

(b) inventive step

Something will be recognized as inventive step by concerned on prior art based

on patent request, can not be presumed before by other people who has general skill inscience.

(c) industrial applicability

If that invention can be produced or can be used in industrial. (act, section 15)

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From those explanations above, we can know that the characteristic of Patent

which is protected in Indonesia and Malaysia is quite similar. It is divided into: novelty,

inventive step, and industrial applicability.

C. Invention which patent can not be given

1. Indonesia

Based on article 7 Act number 6 years 1989 is stated that patent can not be

given for:

a. Invention about process or production result which is published and the

implementation is contradicted with the regulation, norms, and public

order.

b. Invention about process or food and drink production result, include

chemical process for human being or animal consumption.

c. Invention about variety of new plants or animal

d. Invention about examination, caring, medication

e. Theory and methods in science and mathematics

2. Malaysia

Based on the Patent Act, 1983 there something which can not be given ofpatent, such as:

science and mathematics theory

variety of plants and animal

planning, rules, or method which is made for business or game.

diagnosis method towards human and animal

From those explanations above, we can know that the invention which patent

can not be given in Indonesia and Malaysia is quite similar. It is divided into: invention of

science and mathematics theory, variety of plants and animal, and medication or diagnosis

method.

D. Period and Protection of Patent

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1. Indonesia

Patent is given for 14 years after the date of acceptance. The starting and

finishing of patent period will be registered on the patent general list and published on

patent official report. Simple patent can be given for five years. Article 19 determine that

the managing of patent or license obligate to pay the protection fee periodically every year.

2. Malaysia

Patent is given for 15 years after the date of acceptance (Act, section 35 (1)).

The protection fee annually must be paid on the 12th months in the second years after the

patent is given. The extension is 6 months and can be added with the obligation to pay the

additional fee (Act, section 35 (2)).

E. Authorized Institution for Registration

1.Indonesia

In Indonesia, the registration is done by the trade mark, patent, and copy rights

general directorate which under the Ministry of Justice in Republic of Indonesia.

2.Malaysia

The registration can be submitted towards registry of trade marks and patents,

ministry of trade and industry which is located on Jalan Duta, block 10, Kuala Lumpur.

CHAPTER III

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CONCLUSION

Based on some analysis above we can conclude that both of Indonesia andMalaysia give protection for the intellectual property rights which is contained of copy

rights, patent, and trade mark protection. Both of the states also ratify some international

covenant to make sure their consistence in the intellectual property rights protection. Most

of the protection actually same which is included of literature, art work, performance,

music, government work, etc.

But there is still some different thing which is not protected in Indonesia but it

is protected in Malaysia, vice versa. Personally, I think Malaysia govern more details the

characteristic and specification of the intellectual property rights than Indonesia. It is good

because more details acts will minimize the multi interpretation or misconception.

The interesting point here is the criminal sanction which is given for the person

who violates the regulations in Indonesia is lighter than the Malaysia. Take an example: a

copy rights violation which is done by intention and without rights publish or multiplicities

a creation in Indonesia is threaten by imprisonment for 7 years and or fine 100 millions

rupiah. In the other hand, in Malaysia, that offence is threaten by fine maximum $20.000

for each violation of copy rights, or imprisonment 10 years or both of them. In my opinion,

sanction can give influence to those actions. A heavy sanction will give more deterrent

effect to the accused. In the other hand, a light or soft sanction will make the accused does

not afraid. More, the accused will think that the probability to get the benefits on financial

is bigger that the sanction. So, the accused could think that it does not matter to do such a

criminal sanction or violation towards intellectual property rights. However, the legal

enforcement of those acts is the most important par.

Then, the validity of marks in Indonesia is longer than Malaysia. The validity of

marks in Malaysia is 7 years and after that can be extension based on the regulation. While

based on article 7 Act number 19 years 1992, the validity of marks in Indonesia is 10 years

and after that can be extension based on the regulation.

As a neighborhood and on the same clumps, Indonesia and Malaysia must

harmonize the legal protection of Intellectual property rights. However, it is difficult to be

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applied. It happens because Indonesia and Malaysia still face so many problems related to

the Intellectual Property Rights which become a current issue nowadays. These problems

appear because (a) there is different legal system. As we know that Malaysia follow

common law system and Indonesia follow Civil system based on their historical legal

background. (b) the scope of protection which is different between the states. For example:

In Indonesia, the agricultural and food is not included of patent protection. But in Malaysia,

there is no limitation as long as that invention already registered in British, it can be

registered in Malaysia for three years.

Last but not least, those kinds of regulation are depending on the enforcement

and the strict implementation of that. A good regulation will be useless if there is no

enforcement upon it.

REFERENCES

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Prof. Ida Madieha A. Ghani Azmi. The power point from the subject of

introduction to copyrights and design right lecture in International Islamic University of

Malaysia, 2010.

Usman, Rachmadi Usman. 2003. Hukum Hak Atas Kekayaan Intelektual

Perlindungan dan Dimensi Hukum di Indonesia. Bandung: Alumni.

Soenandar, Taryana. 2007. Perlindungan HAKI di Negara-Negara ASEAN.

Jakarta: Sinar Grafika.

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