Issue 387, 12/12/2014
Entertainment Law 101
OVERVIEW
Like it or not , it is inevit able t hat Korean K-Pop and similar pop cult ure cont inue t o arrive. In part icular, af t er decades of const ant hard work, t he Sout h Korean ent ert ainment indust ry has f inally succeeded in spreading it s st yle of pop cult ure t o t hroughout t he world. Similar t o Hollywood,1 Sout h Korean pop cult ure export s also cont ribut ion considerably t o t he st at e revenue. In 2014, t his cont ribut ion reached USD 5 billion which is t arget ed t o be doubled by 2017.2
Inspired by Hollywood and Hallyu3 successes, President Joko Widodo also has a plan t o boost t he Indonesia’ s creat ive economy.4 Through t his indust ry, Indonesia also seeks t o gain economic growt h by exposing it s many diverse and unique cult ures t o ot her count ries t hrough it s music, f ilm, t elevision, radio, and perf orming art s as part of t he creat ive economy sect or.
To bet t er support an at mosphere conducive t o is healt hy development , creat ive indust ries generally require laws and regulat ions t hat are bot h support ive and suf f icient ly comprehensive,5 a legal f ield commonly ref erred t o as ent ert ainment . Int erest ingly, it is hard if not impossible t o f ind a def init ion f or ent ert ainment law, not even in t he Unit ed St at es as a pioneering in t his f ield of law. Common sense, however, t ells us t hat ent ert ainment law covers t he legal realm relat ed t o t he ent ert ainment indust ry alt hough how broadly one chooses t o def ine t he ent ert ainment indust ry has a degree of subj ect ivit y.
1 The ent ert ainm ent business is cent ral t o t he liv es of m any Am ericans and t o t he Unit ed St at e econom y . According
t o Variet y Magazine, ent ert ainm ent recent ly supplant ed food as t he count ry ’s great est ex port earner. ( page 1 of Ent ert ainm ent Law in a Nut Shell by Sherri L. Burr)
2
See “Soap, spark le and pop: How a Really Uncool Count ry Becam e The Tast em ak er of Asia”
3 Hally u is a t erm by Sout h Koreans for t heir pop cult ure w av e. ( See t he aforem ent ioned art icle)
4 There are 15 sect ors in cluded under t he creat iv e econom y indust ry cov ering: ( i) archit ect ure, ( ii) design, ( iii) film ,
v ideos, phot ography , ( iv ) culinary , ( v ) handcraft s, ( v i) fashion, ( v ii) m usic, ( v iii) publishing, ( ix ) int eract iv e gam es, ( x ) adv ert isem ent , ( x i) research and dev elopm ent , ( x ii) art s, ( x iii) perform ing art s, ( x iv ) inform at ion t echnology , as w ell as ( x v ) t elev ision and radio. ( page v ii of Ekonom i Kreat if: Kekuat an Baru I ndonesia Menuj u 2025 by Minist er of Tourism and Creat iv e Econom y )
5 See sect ion 4.5.3 t it led At ap Model Pengem bangan Ekonom i Kreat if ( page 294, Ekonom i Kreat if: Kek uat an Baru
I ndonesia Menuj u 2025 )
Tabl e of Cont ent
OVERVIEW ... 1
PURPOSE ... 2
RELEVANT LAWS TO INDONESIAN SHOWBIZ
INDUSTRY ... 3
Int ellect ual Propert y Law . . . . Labor Law. . . .
INDONESIAN SHOWBIZ INDUSTRY UNIONS ... 7
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As a hybrid of many areas of law and at is broadest , ent ert ainment law includes t he applicat ion of laws and regulat ions in more t radit ional legal f ields relat ed t o
t he ent ert ainment indust ry, pot ent ially covering such diverse f ields as int ellect ual propert y law, labor law, t ax law, insurance law, bankrupt cy law, immigrat ion, securit ies law, securit y int erest s, agency, right s of privacy and def amat ion, t rade unions, indust ry cust om and usage, breach of cont ract claims and remedies, and disput e resolut ion or arbit rat ion requirement s, even criminal law.6 In t he Unit ed St at es, however, ent ert ainment law is generally narrower in scope and more direct ly covers t he showbiz indust ry.
In Indonesia, however, ent ert ainment law seems t o cover a broader scope as Law No. 28 of 2009 on Regional Tax and Levies (“Regional Taxes and Levies Law” ) def ines t he t erm as every show,
perf ormance, game and/ or f est ival enj oyed by paying a cert ain f ee,7 including: (i) movie shows, (ii) perf orming art s, music, dance and/ or f ashion shows, (iii) beaut y pageant s, bodybuilding cont est s, and t he like, (iv) exhibit ions, (v) discot heques, karaoke, night clubs, and t he like, (vi) circus, acrobat s, and magic shows, (vii) billiards, golf , and bowling games, (viii) horseracing and mot or racing, (ix) massage/ ref lexology parlors, spas, f it ness cent ers, as well as (x) sport s game.8
Based on t he above, it becomes evident t hat in Indonesia t he ent ert ainment f ield crosses wit h t ourism act ivit ies. Ent ert ainment lawyers in Indonesia are generally associat ed wit h divorce cases of celebrit ies. If t he government aims t o t ake Indonesian cult ures t o t he world, t here will need t o be a bet t er underst anding of ent ert ainment law in t erms of t he showbiz indust ry, not only f or ent ert ainment indust ry st akeholders, but also t he public in general as a source of ideas and creat ivit y f or t he indust ry.
PURPOSE
This Indonesian Law Digest (ILD) will describe laws and regulat ions in Indonesia t hat govern t he core aspect s of ent ert ainment law relat ed t o t he showbiz indust ry.
As a mult idisciplinary area of law, alt hough ent ert ainment law pot ent ially covers a wide ambit , t his ILD limit s it s discussion t o t he f ollowing core areas of law t hat relat es t o ent ert ainment law:
a. Laws which apply generally t o t he Indonesian showbiz indust ry, wit h a f ocus on int ellect ual propert y law and labor law as t he core legal f ields relat ed t o t he indust ry; and
b. Relat ed unions which play an import ant role in support ing t he Indonesian showbiz indust ry.
6 See ht t p: / / research.law y ers. com / areas- of- law - definit ions. h t m l 7
Art . 1 ( 25) , Regional Tax es and Lev ies Law
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RELEVANT LAWS TO INDONESIAN SHOWBIZ
INDUSTRY
Intellectual Property Law
The core of t he ent ert ainment indust ry is ideas which are realized int o concret e product s, such as f ilms, t elevision shows, and songs. As a consequence, int ellect ual propert y law is t he heart of t he ent ert ainment indust ry as it prot ect s creat ivit y as well as det ermining t he right s and obligat ions of int erest ed part ies over creat ive works t o prevent t heir violat ion.
Indonesian int ellect ual propert y law covers a number of int ellect ual propert y right s covering copyright , pat ent s, t rademarks, prot ect ion of plant variet ies, t rade secret s, indust rial design, and int egrat ed circuit locat ion design. For t he ent ert ainment indust ry, copyright is t he most relevant int ellect ual propert y right as it prot ect s works in t he f ield of science, art , and lit erat ure.9
In Indonesia, copyright is regulat ed under Law No. 28 of 2014 on Copyright (“Copyright Law” ),10 and is def ined as t he exclusive right s grant ed t o t he creat ors of copyright ed works t o use, dist ribut e, perf orm, and prevent ot hers f rom reproducing or announcing t heir works. The scope of copyright ed works is set out under Art icle 40 of Copyright Law which specif ically ref ers t o t he f ollowing it ems f or t he ent ert ainment indust ry:
a. Songs or music (wit h or wit hout t ext );
b. Drama, musical drama, dance, choreography, puppet ry, and pant omime; c. Cinemat ography works; and
d. Translat ions, int erpret at ion, paraphrasing, ant hologies, dat abases, adapt at ions, arrangement s, modif icat ions, and ot her f orms of work t hat are t he result of t ransf ormat ion.
Copyright covers t wo t ypes of right s, moral right s and economic right s.11 Provided t hat t he economic right has not been t ransf erred t o anot her part y,12 t he aut hor or copyright holder is aut horized t o conduct t he f ollowing: 13
a. Publish t heir work;
b. Duplicat e t heir work in any f orm, including act ivit ies t o record t he work using a camcorder in a movie t heat re or f rom live perf ormances;14
c. Translat e t heir work;
d. Adapt , arrange, or t ransf orm t heir work; e. Dist ribut e t he work and/ or a copy of it ; f . Perf orm t heir work;
g. Announce t heir work;
h. Communicat e t heir work; and/ or i. Lease t heir work.
9 Recit al let t er a, Copy right Law
10 For m ore inform at ion, see I LB No. 2479 and I LD No. 376 11 Art . 4, Copy right Law
12 Art . 17, Copy right Law 13 Art . 9 ( 1) , Copy right Law 14
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Not e ent it led part ies may only arrange t he af orement ioned act ivit ies af t er securing a license f rom t he respect ive aut hor or copyright holder.15
In addit ion t o copyright , t he law also regulat es mat t ers on relat ed right s, ref erring t o exclusive right s f or perf ormers, phonogram producers, or broadcast ing agencies in relat ion t o copyright .16 Relat ed right s cover t he f ollowing:17
a. Moral and economic right s of perf ormers, including t he right t o be at t ribut ed t o a perf ormance and preserve t he int egrit y of a work f rom alt erat ion, dist ort ion, modif icat ion and any act ion t hat may diminish t he aut hor’ s dignit y or reput at ion (moral right s)18 as well as right s t o broadcast and communicat e a perf ormance, f ixat e t he perf ormance t hen duplicat e, dist ribut e, lease or provide t he f ixed works t o t he public (economic right s)19;
b. Economic right s of producers of phonograms, including t he right t o duplicat e phonograms, dist ribut e original or duplicat ed phonograms, lease phonogram copies, and publish t he phonogram (by wire or wireless means);20 and
c. Economic right s of broadcast ing agencies, including t he right t o re-run, communicat e, and f ixat e t he broadcast , as well as t o duplicat e a f ixed broadcast .21
These relat ed right s may be t ransf erred t o ot her part ies which result s in t he original right holders not being able execut e t heir relat ed economic right s. Specif ic f or works in t he f orm of songs and music (wit h or wit hout t ext ), a t ransf er is only be valid f or 25 years af t er which t he t ransf eree must ret urn t he right over t he t ransf erred work t o t he original right holder (eit her copyright holder or relat ed right holder).22
The f ollow examples illust rat e t he above principles.
A is a singer who sings a song creat ed by B and recorded by C. In t his example, B is t he songwrit er t hus holds copyright over t he song, wit h A and C holding relat ed right s as a perf ormer and phonogram producer (respect ively). If A perf orms t he song at D’ s t elevision st at ion, t hen D will also hold t he relat ed right as broadcast ing agency.
In addit ion t o copyright , t rademark and t rade secret s are also relevant t o t he ent ert ainment indust ry. Trademark generally ref ers t o words, designs, or combinat ion of bot h which are used by a manuf act urer t o ident if y it s goods and/ or services. A t rademark also represent s t he source of commercial goods and/ or services, guarant ees qualit y, advert ises t he manuf act urer, and describes a product t hus at t ract ing cust omers.23 In t he showbiz indust ry, a t rademark usually prot ect s merchandise produced t o generat e prof it s f rom t he music and f ilm indust ry, e. g. souvenirs at music concert s.
15 Art . 9 ( 2) , Copy right Law 16 Art . 1 ( 5) , Copy right Law 17
Art . 20, Copy right Law
18 Art . 22, Copy right Law 19
Art . 23 ( 2) , Copy right Law
20 Art . 24 ( 2) , Copy right Law 21 Art . 25 ( 2) , Copy right Law 22
Art s. 18 and 30, Copy right Law
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In Indonesia, t rademark is regulat ed under Law No. 15 of 2001 on Trademarks which covers, amongst ot hers, t ypes of t rademarks t hat are prohibit ed f rom being
regist ered, t he procedures and requirement s t o request a t rademark regist rat ion, regist rat ion procedures, as well as t ransf er of t rademark right s.
Relat ed, t he t rade secret law prot ect s inf ormat ion concealed during a process of creat ion and gains it s value by being unavailable or unknown by t he public. The underlying principle is prot ect ion of undisclosed ideas, inf ormat ion, and/ or t echnology t hat is import ant f or t he art ist s, producers, st udios, net works, recording companies, and ot her relat ed part ies in t he ent ert ainment indust ry. One concret e measure t o prot ect t rade secret s is t he signing of a non-disclosure agreement t o keep part ies involved in relat ed discussions f rom revealing conf ident ial inf ormat ion. On t his point , ref erence should be made t o Law No. 30 of 2000 on Trade Secret s.
Labor Law
Anot her import ant area needed t o support t he Indonesian showbiz indust ry is t he est ablishment of conducive working environment f or creat ive workers, not only f or art ist s but t he whole t eam of creat ive work product ions. As a st art ing point , it can simply be said t hat t he ent ert ainment indust ry and it s workers must comply wit h all applicable laws and regulat ions on labor. However, in pract ice, however, t he realit y is t hat many art ist s do not enj oy t he benef it of cert ain privileges mandat ed under labor law, such as social securit y.
The f undament al law govern indust rial relat ions in Indonesian is t he well-known Law No. 13 of 2003 on Manpower (“Labor Law” ). Needless t o say, all employment relat ionships in t he ent ert ainment indust ry
must comply wit h t he Labor Law as art ist s f all under t he def init ion of an employee who are employed by employers and receive cert ain payment s under an employment agreement .
As a result , all of t he right s and obligat ions of employees and employers under t he Labor Law apply t o workers in t he ent ert ainment indust ry. However, t he employment in t he ent ert ainment indust ry is usually under a f ixed-t erm employment agreement (cont ract ) t o which t he crit eria under Art icle 59 of t he Labor Law applies as f ollows:
a. The work is t emporary in nat ure;
b. The working period is predict ed t o f inish wit hin t hree years (maximum); c. For seasonal work; or
d. The work relat es t o new product s, act ivit ies, or t est ing.
Fixed-t erm employment agreement s must be made in writ ing in Indonesian wit h a possible one-t ime ext ension provided t hat t he ext ension is only f or one year (maximum).
A common issue f or employment in t he ent ert ainment indust ry is t he issue of employment of minors. Under t he Labor Law, a minor ref ers t o everyone aged below 18 years-old.24 In general, t he Labor Law prohibit s minors f rom working,25 except under t he f ollowing circumst ances:
24 Art . 1 ( 26) Labor Law
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a. Minors aged 13 – 15 year-old may carry out light work which must not harm t heir physical and ment al healt h, as well as t heir social lif e and provided
t hat : (i) t he employer secures a license f rom t he respect ive minor’ s parent s and ent ers int o an employment agreement wit h t he parent s, (ii) working hours are limit ed t o t hree hours (maximum), (iii) t he work must be carried out in t he af t ernoon and must not harm schooling act ivit ies, (iv) employer must provide work healt h and saf et y f acilit ies, (v) t he employment has a clear scope, and (vi) t he respect ive minor must be paid;26
b. The work is part of a school curriculum which has been approved by aut horized of f icials, provided t hat : (i) t he minor must be 14 years-old (minimum), and (ii) t he employer provides suf f icient and clear guidance on how t o conduct t he t ask, and f urt her provides work healt h and saf et y f acilit ies;27 or
c. The work aims t o develop t he minor’ s t alent s and int erest s.
The last point “ c” is t he basis used t o employ minors in t he ent ert ainment indust ry, f or which t he Labor Law f urt her requires t he employment t o comply wit h t he f ollowing:28
a. The work is conduct ed under parent al supervision; b. Working hours are t hree hours per day (maximum); and
c. Working environment must not harm t he development of t he respect ive minor’ s physical and ment al healt h as well as t heir social lif e.
The employment of minors in t he ent ert ainment indust ry is f urt her regulat ed under Minist er of Manpower and Transmigrat ion Regulat ion 115 of 2004 on Prot ect ion of Minors Employed t o Develop Their Talent and Int erest s.
Anot her f eat ure of t he indust ry is t hat most t alent s/ celebrit ies of t en engage t hird part ies t o represent t hem such as agent s, managers, lawyers, and unions.29 Learning f rom pract ices in t he Unit ed St at es, t alent agent s and personal managers t radit ionally perf orm dist inct yet similar roles in t he ent ert ainment indust ry. However, t he indust ry usually draws a dist inct ion bet ween t he roles t o prevent conf lict s of int erest . In general, agent s arrange and negot iat e every possible employment opport unit y f or a t alent , while personal managers suggest which opport unit y is bet t er f or t he sake of t he t alent ’ s development .30
In addit ion, t alent agent s earn money f rom commission, hourly f ees, or based on a f lat f ee, which can be regulat ed by a government issued regulat ion, or by a union. Fees f or personal managers on t he ot her hand, are more of t en purely by negot iat ion bet ween t he client and personal managers.
In Calif ornia, t he government has enact ed Talent Agent s Act (TAA) which provides t hat anyone ot her t han a licensed t alent agent must not procure, or even merely at t empt ing t o procure, employment f or
26 Art . 69, Labor Law 27 Art . 70, Labor Law 28
Art . 71, Labor Law
29 Page 186, Ent ert ainm ent Law in a Nut shell by Sheri L. Burr 30
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a t alent s. The TAA also requires t alent agent s t o be bonded and secure a license f rom t he Labor Commissioners.31
In Indonesia, t here is generally no clear dist inct ion bet ween t he pract ices of t alent agencies and personal managers dist inct ion and lack of suf f icient regulat ions covering t his point . However, t his lack of f ormal rules is in pract ice subst it ut ed by regulat ions or agreement s made by ent ert ainment indust ry unions/ associat ion, as commonly pract iced in t he USA.
INDONESIAN SHOWBIZ INDUSTRY UNIONS
It is common pract ice in t he Unit ed St at es’ ent ert ainment indust ry t o est ablish numerous unions/ associat ions t o represent t heir members. These unions may lobby f or and st rive t o expand t he wages and benef it s of members, also t o prot ect art ist s f rom unet hical or improper act ivit ies by employers, limit ing t he f ees t hat t alent agent s can charge f or t heir services and ut ilizing st andard cont ract s, et c.32
As ment ioned above, t he lack of specif ic regulat ions covering t he ent ert ainment indust ry is supplement ed by regulat ions and agreement s made by ent ert ainment indust ry unions/ associat ion. Below is a list of some of t he exist ing associat ions in t he Indonesian ent ert ainment indust ry:33
The associat ion has t he f ollowing f unct ions:
- St rives t o review relat ed laws and regulat ions on t he f ilm indust ry, wit h a f ocus t o assert t elevision st at ions as broadcast ing agencies, not product ion houses;
Issue 387, 12/12/2014 pict ure act resses and act ors which provides t raining and educat ion t o guide it s members, as well as organizes social act ivit ies t o est ablish good relat ions bet ween mot ion pict ures art ist s and t he conduit f or copyright owners (songwrit ers and music arrangers) t o gat her.
The associat ion organizes t he import of video recordings conduct ed by it s members and prot ect s members f rom video piracy.
The associat ion has handles all kinds of f est ive event s (e. g. weddings and ot her
The associat ion st rives t o develop Indonesia’ s animat ion indust ry, by level of regulat ion development by t he government and in t he int ernat ional market and also t he prot ect ion of recorded works.
Issue 387, 12/12/2014
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