You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

January 17, 2023

Indonesia’s New Criminal Code and Intellectual Property

Subscribe to Updates

Indonesia’s new Criminal Code was passed by Parliament on December 6, 2022, and ratified by the president and promulgated on January 2, 2023, as Law No. 1 of 2023. The new Criminal Code will take effect after three years (i.e., January 2, 2026) and is a complete overhaul of the previous version, much of which was based on Dutch law drafted during the colonial period. The Criminal Code currently in effect (sometimes referred to by the initials KUHP after its Indonesian name), dates from 1918 and was codified and unified in 1946 following Indonesia’s independence the year before.

Much of the news surrounding the new Criminal Code has focused on certain controversial passages in the new code, including articles that criminalize insulting the president, cohabitation, blasphemy, and sex outside of marriage, and limit the right to protest. Under the new Criminal Code, anyone found to have violated these provisions could be imprisoned for a period ranging from a few months to a few years.

Apart from the more controversial provisions, several articles in the new Criminal Code relate to intellectual property (IP). IP owners should be aware of these provisions in order to avoid committing punishable acts and to understand the criminal enforcement options for their IP rights. The most relevant parts of the law are discussed below.

Trademark and Branding Infringement

Under the new Criminal Code, the misuse of marks on goods or packaging is punishable by up to four years in prison or a maximum fine of IDR 500 million (approx. USD 32,735), possibly including indemnity. This misuse covers various acts of wrongfully affixing marks on goods or packaging—such as when a counterfeiter makes use of fake or unauthorized branding to falsely imply that goods are genuine. Prosecution of these criminal acts can only commence based on a complaint from the owner of the trademark at issue.

These new offenses under the Criminal Code are in addition to existing prohibitions on unauthorized use of another party’s trademark, which are found in Law No. 20 of 2016 on Trademarks and Geographic Indications. Under this law, use of a mark that is identical or substantially similar to the registered mark of another party for similar goods or services is punishable by a fine of up to IDR 2 billion (approx. USD 130,940), imprisonment for up to four or five years (depending on the degree of similarity between the marks), or both.

While these existing provisions enable enforcement against trademark infringement through criminal proceedings, many trademark owners avoid filing criminal complaints against infringers and instead prefer to pursue alternative dispute resolution methods because it is less costly. However, if parties cannot reach an agreement during settlement negotiations, the case may progress to criminal proceedings in court.

Falsely Asserting Ownership of IP

Under the new Criminal Code, knowingly giving false testimony under oath (or otherwise of legal consequence) is punishable by imprisonment for up to seven years. Being convicted of this criminal offense may also result in revocation of various civil and political rights—including the right to vote.

This prohibition may apply to both IP prosecution and in IP-related court proceedings. For example, signing a declaration of ownership (for IP registration purposes) if the IP is similar to or copies the IP of another party may be deemed giving false testimony. Similarly, signing a declaration of use (for trademark renewal purposes) when the owner has not actually made use of the trademark may also expose the owner to accusations of giving false testimony.

Disclosure of Trade Secrets

Disclosure of an employer’s specialized information is a punishable criminal offense under the new Criminal Code, and a complaint from a company’s management is the starting point for prosecution of such an act. Those who are found to have disclosed secret specialized matters regarding a company where they work or have worked may face imprisonment for up to two years or a fine of up to IDR 50 million (approx. USD 3,274).

These provisions are intended to prevent unfair competition in the business world. Thus, the disclosure of specialized matters mentioned in the code can be interpreted as referring to dissemination of things that could lead to unfair business practices. This includes information that is not supposed to be publicly disclosed, such as company secrets and trade secrets.

Law No. 30 of 2000 on Trade Secrets states that something can be categorized as a trade secret (and thus can be used as the basis for a criminal report) if the information:

  • is not known by the public;
  • is in the field of technology or business;
  • has economic value; and
  • is kept confidential by the owner of the trade secret.

These provisions in the new Criminal Code are inseparable from provisions of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition. These stipulations prohibit business actors from conspiring with others to obtain competitors’ company secrets that can enable unfair business competition. However, these provisions specifically discuss competing “business actors” who try to obtain competitors’ confidential information rather than the individuals who disclose it, while the relevant provisions of the new Criminal Code expand criminal liability to individuals who provide or distribute such information to competing business actors.

Integration with Indonesian Law

Both the current Criminal Code and the new version stipulate that specific statutory provisions (e.g., those found in the Laws on Trademarks, Trade Secrets, Unfair Business Competition, etc.) prevail over the Criminal Code if there is any discrepancy. This means that if a criminal act is regulated by multiple laws, the applicable provisions in the specific laws take precedence over the Criminal Code’s provisions that apply to that same act. However, the provisions discussed above add some important clarity and expand some criminal offenses, so IP owners should take them into consideration when deciding on IP prosecution or enforcement strategy. This can help with anticipating risks of criminal punishment, as well as understanding the tools available for IP enforcement or litigation.

Related Professionals

Practices

Intellectual Property

Location

RELATED INSIGHTS​ 

February 19, 2024
Indonesia is a multicultural country with diverse ethnicities, cultures, and religions, leading to a wealth of cultural creations, knowledge, and traditions. Where such creations, knowledge, and traditions are owned by a certain community and have become part of the identity of that community, they may be protected by Indonesian law as communal intellectual property. One type of communal intellectual property is traditional knowledge. A well-known example is a form of martial arts known as pencak silat. This martial art was traditionally performed when welcoming guests, usually accompanied by gondang borogong music, and is registered as traditional knowledge from Riau, Indonesia. New Regulation on Communal Intellectual Property Traditional knowledge used to be regulated by a number of laws, including three separate ones on copyright, patents, and cultural advancement. However, in December 2022, the Indonesian government issued Government Regulation No. 56 of 2022 on Communal Intellectual Property (“GR 56/2022”), establishing a single set of rules for the definition and protection of traditional knowledge. One of the aims of the regulation is to encourage the registration of communal intellectual property, which was part of the government’s priority program for 2023. Under GR 56/2022, traditional knowledge is defined as ideas and concepts that contain local values resulting from real experiences of interacting with the environment and that are developed continuously and passed on to the next generation. The regulation recognizes the following categories of traditional knowledge: Traditional methods or processes; Technical proficiency; Skills; Learning; Agricultural knowledge; Technical knowledge; Ecological knowledge; Knowledge related to genetic resources; Knowledge of medicine, traditional medicine, and healing procedures; Economic systems; Social organization systems; Knowledge related to the behavior of nature and the universe; and Other forms of knowledge. Traditional knowledge is a moral right belonging to the community, requiring any user of the traditional knowledge to acknowledge its
Read More
January 31, 2024
On January 31, 2024, Myanmar’s Intellectual Property Department (IPD) announced that it would officially start accepting industrial design applications under the Industrial Design Law on February 1, 2024. The IPD made this public in Announcement No. 1/2024, which comes three months after the Industrial Design Law entered into force on October 31, 2023. The Industrial Design Rules, issued by the Ministry of Commerce (MOC) on September 29, 2023, are another key instrument regulating the registration of industrial designs in Myanmar. In addition, the MOC’s Notification No. 71/2023 issued on October 27, 2023, specifies the forms required for industrial design registration and related actions, and the fees are specified by the IP Agency under Notification No. 2/2023, issued on December 29, 2023. Industrial design owners (individuals and legal entities) can file registration applications for new industrial designs with the IPD electronically, in person (directly or through a local representative), or by post. To be registered under the Industrial Design Law in Myanmar, industrial designs must be “new,” meaning that they must not have been disclosed to the public inside or outside Myanmar prior to the application date or the date of priority, if priority is claimed. Owners who wish to apply for and enjoy statutory protection of their industrial designs in Myanmar should start preparing all necessary documents and information for filing as soon as possible. For more information on industrial design registration in Myanmar or assistance in applying to register industrial designs, please contact Tilleke & Gibbins at [email protected].
Read More
January 24, 2024
Mickey Mouse (or, rather, a specific early version of the iconic Disney character) famously entered the public domain in the United States on January 1, 2024, almost 100 years after his 1928 debut in the short film Steamboat Willie. Mickey’s arrival highlighted the increasingly wide annual observance of “Public Domain Day”—the day when creative works enter the public domain for the first time, after the expiration of their copyright terms. This date, however, is not international, and depends on the copyright laws of each country. In Vietnam, Mickey Mouse had been in the public domain for years. Vietnam’s public domain regime Under Vietnam’s IP Law, the duration of copyright protection for moral rights is indefinite, except for rights to publish the works, which, together with economic rights, have a protection term of 75 years from first publication for cinematographic works, photography, applied art, and anonymous works. When these works are not published within 25 years from the date of their creation, the protection term is 100 years from the date of creation. For anonymous works, the protection term is determined when information about the author becomes available. For other types of copyrighted works (such as literary and musical works), following the Berne Convention, the protection term is for the life of the author and 50 years after the author’s death. Works for which the terms of protection have expired belong to the public. Everyone is entitled to use such works but must respect the moral rights of the authors. According to these regulations, Steamboat Willie and two other 1928 Mickey Mouse shorts, which are regarded as cinematographic works, have been in the public domain in Vietnam since 2003. This means that, for the past 21 years, anyone could legally copy, publish or distribute those shorts in Vietnam, and could
Read More
December 21, 2023
Can rights holders record trademark and brand-related IP information with customs and, if so, how? Rights holders can record their registered marks with the Myanmar Customs Department to protect their intellectual property rights from cross-border trade in counterfeit goods bearing their registered marks under the Trademark Law, which came into force on April 1, 2023. Furthermore, regardless of whether they have filed a customs recordation, registered mark owners can request a suspension order to prevent the release of goods into free circulation if they have evidence giving reason to suspect that counterfeit goods are being—or will be—imported into the country, in accordance with Section 68 of the Trademark Law’s. According to Ministry of Planning and Finance (MOPF) Notification No. 50/2023, once a trademark is registered under the Trademark Law in Myanmar, the registered mark owner is entitled to apply for a customs recordation with the Customs Department directly or via a legal representative at no cost. Unless the mark is registered with the Intellectual Property Department (IPD) under the Trademark Law, a customs recordation or suspension order cannot be applied. A customs recordation is valid for two years from the date of the application’s acceptance. The recordation can be renewed every two years, 30 days before the expiration date. After the customs recordation is made, any information amended or withdrawn for the registered mark at the IPD must also be provided to the Customs Department within three working days, together with any necessary documentation reflecting the amendments or withdrawal. Customs recordation is not available for industrial designs. The Industrial Design Law and Industrial Design Rules do not provide the requirements and process for a customs recordation or suspension order in relation to industrial designs. Section 68 of the Industrial Design Law indicates that, upon a rights holder’s request, the
Read More