Indonesia Copyright Litigation

Question Set: Sources of Law

Question Body 1: What are the principal sources of law and regulation relating to copyright and copyright litigation?

Answer Body:

Indonesia is party to the following International Agreements/Conventions:

• Berne Convention for the Protection of Literary and Artistic Works 1886.
• WTO Agreement on Trade Related Aspects of Intellectual Property Rights 1994 (TRIPS).
• World Copyright Treaty (WCT) 1996.
• Marrakesh VIP Treaty 2013. Indonesia has very recently ratified the Marrakesh VIP Treaty, dated 28th January 2020, which facilitates access to published work for persons who are blind, visually impaired or print disabled. This brought the treaty into force in Indonesia dated 28th April 2020.

In 2014, the Government of Indonesia released a new copyright law known as Undang-Undang Hak Cipta Baru, Law No. 28 of 2014 (Copyrights Law). This law repeals Law No. 19 of 2002.

The applicable regulations include Government Regulation Number 16 of 2020 on Registration of Works and Related Rights Product (signed on 26th Feb 2020).

The Government Regulation Number 16 of 2020 on registration is meant to implement Articles 73, 75, 77 and 79 of 2014 Copyright Law on registration/recordation of copyright works.

Question Set: Court System

Question Body 2: In which courts is copyright enforced?

Answer Body:

Claims for copyright infringement are filed with the Commercial Courts (Article 100, Copyrights Law). Commercial courts have been set up in Jakarta, Makassar, Medan, Semarang, Surabaya to deal with bankruptcy and intellectual property cases (President Decree No. 97 of 1999).

In cases involving the infringement of copyrights and/or related rights in the form of piracy, where all the parties to the suit are based in Indonesia, they must undertake mediation, before proceeding with penal charges (Article 95, Copyrights Law).

The decision of the commercial courts is appealable only before the Supreme Court (Article 102, Copyrights Law).

Question Body 3: Who can represent parties before the court?

Answer Body:

Only an advocate registered with Perhimpunan Advokat Indonesia or Peradi (the Indonesian Advocate Association) or Kongres Advokat Indonesia (the Congress of Indonesian Advocates) can represent parties before the law courts in Indonesia.

Question Body 4: What is the language of the proceedings? Is there a choice of language?

Answer Body:

Bahasa Indonesia is the only language used in all Indonesian proceedings.

Question Body 5: To what extent are courts willing to consider, or are bound by, the decisions or opinions of other national or foreign courts, or other national or international bodies, that have handed down decisions in similar cases?

Answer Body:

Indonesian courts can consider decisions from other jurisdictions but are not obliged to follow them.

It is common to call on reputable legal experts to testify on certain legal positions that a party wishes to advance. Overseas decisions can be put forth by these local experts with an explanation of their relevance in relation to the matter before the Indonesian court, since the expert's perceived independence is considered helpful.

Question Set: Substantive Law

Question Body 6: What types of works can be protected by copyright?

Answer Body:

The types of work that can be protected are set out in Article 40 of the Copyrights Law, which refers to creation of protected works including work in the fields of science, art, and literature. This is followed by a list of specific works such as musical work, publications and computer programs. Copyright protection of accorded regardless of nationality of the creator.

The list in the Copyrights Law includes:

• Books, pamphlets, typographical arrangement (namely, the artistic aspect with respect to the composition and shape of literary works), and all other literary works.
• Public talks, lectures, speeches and other similar works.
• Visual aids made for educational and scientific purposes.
• Songs and music with or without lyrics.
• Dramatic works, musical dramas, dances, choreography, puppet shows and pantomimes.
• Fine art works in all forms such as paintings, drawings, engravings, calligraphy, sculptures, statues or collages.
• Applied art works.
• Architectural works.
• Batik art works or other pattern and motive arts.
• Photographic works.
• Cinematographic works.
• Translations, interpretations, alterations, anthologies, databases, adaptations, arrangements, modifications and other works resulting from a transformation.
• Translations, adaptations, arrangements, transformations or modifications of traditional cultural expressions.
• Compilation of work or data, whether in a format that can be read by a computer program or by any other media.
• Compilation of traditional cultural expressions provided that the compilation is an original work.
• Video games.
• Computer programs.

Question Body 7: What are the main acts that constitute primary and secondary infringement of copyright?

Answer Body:

Copyright of a work is infringed when a party does any of the acts protected under the economic rights that are exclusive to the copyright holder. Under the Copyrights Law, the following are protected rights:

• Adaptation and transformation.
• Distribution of the work or a copy.

There is no provision in the Copyrights Law that specifically sets out secondary liability, except for Article 114 which provides for liability. However, there is a provision providing for criminal liability against the management of a place of trade who knowingly permits copyright infringement to be carried out at the place under its management.

Every person who manages a place of trade and deliberately and knowingly lets sales and/or duplication of infringing goods take place there can be punished by a fine of up to INR100 million.

Question Body 8: Does your jurisdiction provide authors with moral rights?

Answer Body:

Moral rights of authors are provided under Article 5 of the Copyrights Law. The rights include:

• Preserving the integrity of the work from distortion or mutilation.
• Including or excluding their name on the copy with respect to the public use of their works.

Question Body 9: What defences are available to an alleged infringer?

Answer Body:

Provided that the information on the authors of the works' is disclosed, the following defences are available to an alleged infringer:

• Education, research, writing scientific works, reports, criticisms, and reviewing cases without damaging the fair interests of the copyright owner.
• Security and organisation of the state, and court proceedings.
• Non-commercial performance or staging without damaging the fair interests of the copyright owner.
• Facilitating people under a disability (for example, braille or audio books) for non-commercial purposes.
• Modifying architectural works under certain technical considerations.

Question Body 10: Is there a requirement for copyright registration?

Answer Body:

Copyright registration is not mandatory for protection to accrue but it is still advisable when the need to enforce arises because it is useful proof of ownership of the copyright. Copyright registration can be requested from the Directorate General of Intellectual Property (DGIP) at the following link https://dgip.go.id/.

The required documents include:

• A sample of the copyright work.
• Assignment from the author.
  • Copyright Notice
    There is no specific requirement to display a copyright notice. However, a notice is recommended because it may be useful to prove that infringement was deliberate, which is a requirement under Article 98 of the Copyrights Law.
  • Consequences for Failing to Register Copyright or to Display a Copyright Notice
    Without registration, it may not be possible to prove ownership of the work when the need to enforce the copyright arises.

Question Body 11: How long does copyright protection last for the principal types of copyright work?

Answer Body:

The period of protection is generally 50 years after the death of the author. Where the work is owned by a legal entity, copyright protection is for 50 years from the date of first publication.

Question Body 12: How is copyright infringement assessed?

Answer Body:

Substantial similarity is sufficient enough to establish infringement, but the boundaries are still unclear.

Question Body 13: On what grounds can copyright in a work be declared invalid or unenforceable?

Answer Body:

Works do not need to be recorded under the Copyrights Law to be protected. However, a work will not be protected if it lacks originality, which could be due to the fact that it is copied work. Any recording of such work would be liable to cancellation.

Question Body 14: What limitation periods apply to copyright infringement actions?

Answer Body:

The Copyrights Law does not impose a limitation period. It is usually thought to be 30 years, in reference to the Indonesia Civil Code, but this limitation period applies to breach of contract. However, the Indonesian Criminal Procedure Code requires that evidence not be more than six months old (in the case of local complainant) and not more than nine months old (in the case of foreign complainant).

Question Body 15: To what extent can the enforcement of copyright expose the copyright holder to liability for an anti-trust violation?

Answer Body:

Article 50(b) of Law no 5 of 1999 (Anti-Monopoly Law), specifically exempts all agreements relating to intellectual property, trade secrets and franchising.

However, Guideline No. 2 of 2009 on the Exemption of Intellectual Property Agreements, issued by the Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha) or (KPPU), takes the position that this exemption is not absolute and that intellectual property licences are still subject to scrutiny under the Anti-Monopoly Law.

Other than the above, the Anti-Monopoly Law does not specifically regulate conduct of a copyright holder in the enforcement of their copyright.

Question Set: Parties to Litigation

Question Body 16: Who can sue for copyright infringement?

Answer Body:

• Author

The author of the work, being the owner of copyright, can sue for infringement unless copyright has been transferred to another party, who then becomes the copyright holder.

• Copyright Holder

A copyright holder can sue for infringement.

• Exclusive Licensee

An exclusive licensee can sue for infringement, provided that the licence is registered with the DGIP.

• Non-Exclusive Licensee

A non-exclusive licensee can sue for infringement, provided that the licence is registered with the DGIP.

Question Body 17: Can copyright collecting societies sue for copyright infringement to enforce their members' rights?

Answer Body:

The Copyright Law mandates that Collective Management Organization (CMO(s)) must be regulated and provides for two national CMOs: one for copyrights and the other for related rights. In the past, CMOs were privately managed but under the Copyrights Law, CMOs are regulated as National Collective Management Organisations (Lembaga Manajemen Kolektif Nasional) (LMKN)).

The provisions in the Copyrights Law mandating regulated CMOs do not specifically empower them to file civil claims. Under Article 96, the right to file a civil claim still lies with the copyright holder. However, it is thought that the CMOs can report on infringements that may lead to police investigations (of criminal offences publishable with fine and/or imprisonment) and prosecution.

Question Body 18: Under what conditions, if any, can an alleged infringer bring proceedings to obtain a declaratory judgment of non-infringement?

Answer Body:

An alleged infringer cannot bring proceedings for a declaratory judgment on non-infringement.

Question Body 19: Who can be sued for copyright infringement?

Answer Body:

Persons liable to be sued are those who impinge on the exclusive rights discussed below.

• Economic rights

The copyright law protects economic rights which includes amongst others, publication, reproduction, distribution, rental of the work.

Parties who carry out such protected activities without consent are liable to be sued.

• Related rights

Related rights enumerated in Article 20 as follows are also protected:

1. moral right of Performers;

2. economic right of Performers;

3. economic right of Phonogram Producer; and

4. economic right of Broadcasters

Impingement of such rights by third parties will render them liable to be sued, and this could include:

- in the case of sound recording, distribution of unauthorized copies of sound recording, making available to public by wire or wireless means

- in the case of broadcast, unauthorized broadcasting of programs, fixation of broadcast

- in the case of performer rights: broadcasting of performance, fixation of the performance, dealing in the fixation such as distribution, reproduction and rental of the fixation.

• Moral rights

Moral rights include the right to be named as author, right to preserve title of the work and stop the work from being distorted or modified or "any matter adversely affecting self-esteem or the reputation".

• Secondary liability

The Copyright Law does not provide for secondary liability except against persons who "manage the business premises" where the infringement activities are carried out.

Article 10

Managers of business premises are prohibited from allowing the sale and/or reproduction of goods resulted from Copyrights and/or Related Rights infringements in the location under their management.

Article 114

Every Person managing business premises in all its forms who deliberately and knowingly allows the sale and/or duplication of goods resulting from infringement of Copyright and/or Related Rights in the premises that they manage as referred to in Article 10 shall be sentenced with a maximum fine of Rp100,000,000.00 (one hundred million rupiahs).

Other than that, the Copyright Law suites do not impose liability parties who would be liable in the sense of secondary infringement that might be found in other countries. As such, company directors are unlikely to be found liable in a civil infringement case. However, it is different in criminal prosecution where the police investigator will try to establish the person who actually carry out the infringement within the company for the purpose of naming the accused in the criminal indictment.

Question Body 20: How is the liability of intermediaries, such as internet service providers treated? Under what conditions can they be liable for copyright infringement? Are there any specific defences available to them?

Answer Body:

The copyright "safe harbour" protection for intermediaries is contained in Ministry of Communication and Information Technology Circular No. 5 of 2016 on the Limitations and Responsibilities of Platform Providers and Merchants in E-Commerce Using User-Generated Content Platforms. The circular only applies to consumer-to-consumer platforms and are generally limited to online marketplaces. Unlike the Digital Millennium Copyright Act 1998 in the United States, which criminalises production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works, Indonesia has no binding mechanism to incriminate people for these infringements.

Question Body 21: Is it possible to add or remove parties during litigation?

Answer Body:

The civil procedure does not allow for this. It will be necessary to re-file the lawsuit.

Question Set: Enforcement Options

Question Body 22: What options are open to a copyright holder when seeking to enforce its rights in your jurisdiction?

Answer Body:

• Civil Proceedings

Copyright infringement must be brought in the commercial courts, which have been set up in Jakarta, Makassar, Medan, Semarang and Surabaya to deal with bankruptcy and intellectual property cases. Jurisdiction for infringement is based on the domicile of the defendant.

• Criminal Proceedings

Copyright infringement can incur criminal sanctions and maximum imprisonment of four years and/or a maximum fine of INR500 million.

If copyright infringement is established in criminal proceedings, the confiscation, seizure and destruction of by-products resulting from the infringement can be ordered. These by-products are usually seized during police raids at the criminal investigation stage. Disposal will be ordered when the decision on the criminal prosecution is made, or more commonly the infringer agrees to waive the claim as part of a settlement so that the holder can take possession and have the infringing materials destroyed or taken down from electronic platforms.

• Border Measures

Border enforcement of IP rights (trade marks and copyright only) became available in Indonesia from 16 June 2018, when the implementing regulation No. 40/PMK.04/2018 from the Ministry of Finance came into effect.

In practice, however, there are several barriers in the new system which will affect the stopping infringing goods from entering the market. A key barrier for foreign brand owners in the new Customs recording system, particularly the requirement to apply for a record to be made through a local business entity, as not all foreign brand owners have subsidiaries in Indonesia. Other issues include:

• The complex judicial system, (here the brand owner must apply to the Commercial Court for a detention order against the infringing goods).
• The very short timelines. Rights owners are expected to apply for court order against the suspended goods within 6 days and have the court order issued within 8 days. This is not likely to be practical in practice particularly where the rights owner is not based in Indonesia.
• High costs (where the applicant must pay a IDR100 million bond to cover all operational costs).

Other practical concerns remain including the nationwide implementation of this system and how Customs' will co-ordinate with the court.

Question Body 23: Is interim relief available for the rapid removal of infringing content from the internet?

Answer Body:

The Joint Regulation on the Implementation of Content and/or User Access Blocking of Content that Infringes Copyright and/or Related Rights on Electronic Systems was issued by the Ministry of Law and Human Rights and the Ministry of Communication and Informatics. It implements sections of the Copyrights Law, including the provisions which make online content that infringes copyright and/or related rights illegal.

The Regulation covers complaints about online copyright and/or related rights infringements reported to the Ministry of Communication and Informatics. Any copyright holder including related entities like the author, licensee or a collective management agency can submit complaints to the DGIP directly or through an electronic system (via the DGIP website).

A verification team at the Ministry of Communication and Informatics goes through reports and provides recommendations to the Directorate General of Informatics. Decisions can then be made to partly or entirely block access to infringing content.

Question Body 24: Is it advisable to send a letter before action (cease and desist letter) to an alleged infringer before commencing copyright infringement proceedings?

Answer Body:

There is no specific obligation to issue a pre-action letter, however one is still recommended, because this is a local practice. The Copyrights Law does not create liability for groundless threats, but care should still be taken due to concerns around defamation, especially if the letter is circulated to a significant segment of the public.

Question Body 25: To what extent are your national courts able to grant cross-border or extra-territorial injunctions (preliminary or permanent)?

Answer Body:

The scope of any injunction is restricted to within the geographic limits of Indonesia. Sanctions for breach of an injunction order are dealt with by the police, since disobedience of a court order entails sanctions under the Criminal Code.

Question Body 26: To what extent are arbitration, and alternative dispute resolution (ADR) methods (such as mediation), available to resolve copyright disputes?

Answer Body:

• Arbitration

Article 95 of the Copyrights Law recognises the resolution of disputes through alternative dispute resolution (ADR), including arbitration. However, the DGIP will not revoke a mark by implementing any arbitration award because the power of invalidation lies with the court.

• ADR

ADR is rare. An arbitration body was set up to deal specifically with intellectual property disputes, but so far, no matter has been submitted to it.

Question Set: Procedure in Civil Courts

Question Body 27: What is the format of copyright infringement proceedings?

Answer Body:

Copyright infringement actions are filed in the commercial court. Each lawsuit is tried by a panel of (typically three) judges. The order of proceedings is the same as for other proceedings, and includes following stages:

• The lawsuit is filed along with a statement of claim and a power of attorney.
• The bailiff attempts service of process.
• The court issues the first hearing date.
• Defence pleading from the defendant.
• Reply pleading from the claimant.
• Rejoinder pleading from the defendant.
• Evidence from the claimant.
• Evidence from the defendant.
• Witness/expert from the claimant (if any).
• Witness/expert from the defendant (if any).
• Closing arguments.

Question Body 28: What are the rules and practice concerning evidence in copyright infringement proceedings in your jurisdiction?

Answer Body:

• Documents

The applicable civil procedure rules are left over from the Dutch Colonial period, known as:

• Herzeine Inlandsch Reglement (HIR).
• Reglement Buiten Govesten (RBg).

Photocopies of documents will not be accepted unless originals have been produced in court for inspection by the judges. In lieu of the original, the court may accept notarised copies provided that the notarisations are legalised by the Indonesian Consulate in the country where the notarisation takes place.

• Witness Evidence

Witness testimony must be given verbally (both on direct examination and cross-examination).

• Expert Evidence

Experts are frequently used and it is not uncommon to engage a legal expert to inform judges about copyrights law principles. A report from the expert may help as an aide memoire, but the testimony must still be given verbally.

Question Body 29: To what extent is survey evidence used?

Answer Body:

There is not much use for survey evidence since judging substantial similarity is within the purview of the judges, aided by a technical expert in the field of work where the infringement occurred.

Question Body 30: Is evidence obtained for criminal proceedings admissible in civil proceedings, and vice versa?

Answer Body:

Evidence given in criminal and civil proceedings is usually restricted to the purposes of those proceedings. The judges are not likely to allow the use of such evidence in separate civil proceedings.

However, the court can refer to decisions given in other proceedings when making its judgment.

Question Body 31: Is evidence obtained in civil proceedings admissible in other civil proceedings?

Answer Body:

See Question 30.

Question Body 32: To what extent is pre-trial discovery permitted and what other mechanisms are available for obtaining evidence from an adverse party or third parties?

Answer Body:

• Pre-Trial Discovery

The civil procedure rules do not support litigants in obtaining evidence. There is no concept of discovery under Indonesian civil procedure. Each party can decide whether to disclose documents that they wish to rely on in the action.

There is also no procedure to subpoena documents from the other side or from third parties. As such, the claimant will have to rely on their own efforts to obtain admissible evidence.

• Other Mechanisms

Not applicable.

Question Body 33: What level of proof is required for establishing infringement?

Answer Body:

Neither the Copyrights Law, nor civil procedure rules prescribe the level of proof for establishing infringement. It is generally expected that documentary evidence is required.

The burden of proof is on the party asserting a fact or a right (Article 1865, Indonesian Civil Code).

Question Body 34: How long do copyright infringement proceedings typically last?

Answer Body:

• Expediting Proceedings

Intellectual property infringement lawsuits must be filed with the commercial court.

A first instance decision must be issued within 90 days from the start of the action (Article 101, Copyrights Law). A panel of three judges is assigned to handle the lawsuit at the time of filing and they will give directions at each step of the way until delivery of the first instance decision. Judges are accountable to the Supreme Court if they cannot complete intellectual property cases within the stipulated time frame (90 days for trade mark/copyright cases, 180 days for patent cases).

• Delaying Proceedings

Judges are reluctant to give long adjournments and expect each procedural step to be taken not more than two weeks after the previous procedural step.

• Staying Proceedings

There is no avenue for staying proceedings because of the obligation to arrive at the first instance decision within 90 days from filing a lawsuit.

• Counteracting Delay to Proceedings

As discussed above, judges are reluctant to grant long adjournments and are obliged to dispose of the case within the statutory time limit of 90 days.

Question Set: Preliminary Relief

Question Body 35: Is preliminary relief available, and if so what measures are available and under what conditions?

Answer Body:

The claimant can request a temporary order for the defendant to stop infringement and deliver up the infringing items (Article 106, Copyrights Law).

To obtain this order, the defendant must submit an "initial indication of infringement". What this means is unclear because there is only one known decision granting relief under this procedure, and this was a copyright case No. 93/Pdt.Sus-Hak Cipta/2013/PN.Jak.Pst.

A temporary order is different from a common law interlocutory order. The proceedings for a temporary order are standalone and separate from a claim for damages. The temporary order can either be dismissed or maintained following arguments from both sides. Where the order is maintained, it becomes permanent. There will be no further hearing on damages in that set of proceedings. The copyright author, holder or related rights holder then can file a separate civil action claiming damages or to file a criminal complaint (Article 109(4), Copyrights Law).

• Injunctions

Urgency is not a condition for seeking a temporary order, the threshold is "strong preliminary evidence". All requests for temporary orders start with an ex parte hearing. The court will not grant a preliminary injunction to support proceedings in another jurisdiction.

Question Body 36: Can a protective writ be filed at the court at which an ex parte application may be filed against that defendant?

Answer Body:

There is no procedure available for the filing of protective writs.

Question Body 37: What is the format for preliminary injunction proceedings?

Answer Body:

• General

A temporary order is different from a common law interlocutory order. The proceedings for a temporary order are standalone and separate from a claim for damages. The temporary order may either be dismissed or maintained following arguments from both sides. Where the order is maintained, it becomes permanent. There will be no further hearing on damages in that set of proceedings. A copyright author, holder or related rights holder can then file a separate civil action claiming damages or to file a criminal complaint (Article 109, Copyrights Law).

• Level of Proof

The threshold is "initial indication of infringement". All requests for temporary orders begin with an ex parte hearing.

• Evidence

The following evidence is required:

• • Proof of ownership of copyright. For this, the court is likely to require a record of copyright registration.
  • "Initial indication of Infringement".
  • Clear description of goods and documents to be seized
  • Statement in support that the defendant is likely to destroy evidence.
• Copyright Validity

The rules do not expressly address this, but in principle there is no reason why a defendant should not be allowed to raise validity as an issue when defending an application for an injunction/temporary order.

• Length of Proceedings

The decision on whether to grant ex parte order must be made within four days from filing of the request for interlocutory injunction. The ex parte order must be served on the defendant within 24 hours from when it is made.

After this, if the defendant wishes to challenge the decision, the assigned judge must reach a decision within 30 days from issuing the ex parte order on whether or not to affirm the ex parte interlocutory order. If the order is affirmed, it becomes permanent.

Question Body 38: Where a preliminary injunction is granted, is it necessary to start main proceedings to confirm the preliminary injunction, and if so, what is the deadline?

Answer Body:

A temporary order is different from a common law interlocutory order. The proceedings for a temporary order are standalone and separate from a claim for damages. The temporary order can either be dismissed or maintained following arguments from both sides. Where the order is maintained, it becomes permanent. There will be no further hearing on damages in that set of proceedings. The copyright holder, author or related rights holder can then file a separate civil action claiming damages, or to file a criminal complaint (Article 109, Copyrights Law).

Question Body 39: What remedies are available in a copyright infringement action?

Answer Body:

• Permanent Injunction

An order for the infringement to stop is one of the reliefs that the copyright author or holder can seek in a civil claim. The order will only be effective against the defendant named in the lawsuit.

• Monetary Remedies

The Copyrights Law sets out provisions for claiming damages from the infringer. Damages can be either material or non-material. The former refers to damages based on actual loss suffered, while the latter is dependent on the discretion of the judges. Under certain circumstances, the damages can be granted in the form of account of income earned. This applies where the income is earned from "organisng talks, scientific meetings, performances or exhibitions of the work resulting from the infringement of copyright or related rights products".

• Delivery Up or Destruction of Infringing Goods

The Copyrights Law is unclear on the rule for delivery up because this is not explicitly provided for. Article 95 of the Copyrights Law, which is the basis for a civil claim against copyright infringement, only provides for:

• A claim for damages.
• Ceasing the work that relates to the violation of copyright or related rights.

The temporary measures (interlocutory injunction) provide for preservation of evidence but the rules are silent as to how such "preserved evidence" must be treated where the interlocutory injunction is affirmed.

• Publication of the Decision

Appeal level decisions are published (https://kepaniteraan.mahkamahagung.go.id/perkara). However, first instance decisions are not always published.

• Recall Order

The Copyrights Law does not provide for recall orders.

• Declaration of Infringement and Validity

A declaration of infringement and validity can be one of the reliefs granted in the statement of claim.

Question Body 40: How are monetary remedies assessed against a copyright infringer?

Answer Body:

See Question 39, Monetary Remedies.

Question Set: Appeal Remedies

Question Body 41: What routes of appeal are available to the unsuccessful party and what conditions apply?

Answer Body:

The Supreme Court hears appeals from first instance decisions in copyright cases.

Grounds for appeal are listed in Article 30 of the Supreme Court Law and include:

• Lack of authority or exceeding the limits of authority.
• Erroneous application or contravention of applicable laws.
• Failure to comply with certain procedural requirements.

The appellant must establish one of the above grounds to succeed on appeal.

The time limit for the Supreme Court to reach a decision on an appeal is 90 days from the date of receipt of the case file from the first instance court in which the appeal is filed.

An appeal is initiated by filing a notice of appeal with the commercial court within 14 days after the first instance decision. The memorandum of appeal must be filed within 14 days from the date of filing of the notice of appeal. The respondent must file a counter-memorandum within 14 days after the receiving date of the appeal memorandum. The commercial court then sends the file to the Supreme Court.

The appeal is decided based on arguments in the pleadings, without an oral hearing.

The losing party can request judicial review by the Supreme Court of an appeal decision. Possible grounds for judicial review include the following:

• The decision was based on misrepresentation or deception by the other party.
• Discovery of key evidence that was not available previously.
• The decision exceeded the claim.
• The court omitted to decide on any claim(s) or issue(s) raised.
• There are contradictory decisions between the same parties on the same subject matter.
• The decision resulted from oversight by the judge or an obvious mistake.

(Article 67, Supreme Court Law.)

Question Set: Litigation Costs

Question Body 42: What level of cost should a party expect to incur to take a case through to a first instance decision, preliminary injunction proceedings and appeal proceedings?

Answer Body:

Lawyers in Indonesia can charge between IDR3 million to IDR9 million per hour. Costs for an IP infringement action can range from IDR150 million to IDR600 million, depending on the complexity of the case.

The courts can order the losing party to pay the winning party's legal costs but this is limited to between IDR2 to IDR5 million, which is insignificant in relation to the costs that the attorney can charge.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.