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31 Aug 2021

icon-write Tim Slingschröder

The best results are often achieved by cooperating with others. A friend or colleague may spot errors in a design plan or may notice that a newly designed logo would look way better in blue than in orange. But once one is ready to file an application for the legal protection of his Intellectual Property – then who will be recorded as the rightsholder on the Certificate?

The recorded rightsholder in case of normal co-creatorship

Let us open this article by answering the main question straight away: it is perfectly possible to have more than one person’s name recorded in an application for Intellectual Property registration. Band members creating songs together for example can all be considered its legal creators according to Article 1 of Law 28/2014 about Copyrights. Likewise, Article 1 of Law 13/2016 about Patents and Article 1 of Law 31/2000 about Industrial Designs acknowledge that a work can have more than one creator, and that more than one of those creators can be mentioned as the creator in the application for registration.

Co-creatorship for parties providing additional services

In case of co-creatorship, the general rule prescribes every creator to hold an equal share in the Intellectual Property rights. This means two designers are both entitled to 50% of the Industrial Design rights vested on their work – even if one of the two did 90% of the actual work.

Obviously, situations are not always as easy as simple as explained in the applicable laws’ basic rules. All members of The Beatles may initially hold the Copyrights over their songs – but what about the production team and background artists, without who famous songs like ‘Hey, Jude’ and ‘Yellow submarine’ would not have sounded the way we know them today? The 2016 guide ‘Panduan Pendirian Usaha – Studio Musik’ (‘Business Operating Guide for Music Studios’) issued by the government agency for the creative economy BEKRAF, explains how recording studios also hold a share in the Copyrights of music recorded by them. Though contracts between recording studios and musicians often set out provisions regarding the division of Copyrights, the basic rule states a studio takes part in creating the final work being the music and is therefore allowed to claim Copyrights over this work of music. Likewise, any party contributing to a patentable invention or a design is eligible to claim its rights.

The contribution in question must have been made with regard to the invention or the design though. A factory making the physical objects as drafted in an Industrial Design for example is certainly indispensable when it comes to creating the final product, hence this factory has in no way contributed to the design itself and can therefore not claim its Industrial Design rights. When we get back to the example of The Beatles, one could also argue that their songs would not have sounded the same without the producers of their guitars and other instruments – yet everyone will feel in his bones that those producers will not qualify as holders of the Copyrights over The Beatles’ songs. The apparent reason for this is that such producers did not specifically create their products with the intention of creating the songs in question.

Determining the rightsholder for works comprising of several individual pieces

Though in many cases the object created is one, inseparable piece of work, sometimes a final work consists of several pieces, each being made by another person. Article 33 of the Copyright Law for example states that the party overseeing the process of creating the final work is eligible to claim the Copyright over this whole final work. It might sound rather vague to determine whether a work can be seen as a whole or as a compilation of several individual works, but perhaps a good example is a photo book containing pictures taken by different photographers. Each photographer might have published his photos before and holds the Copyrights over the images they captured, yet the author of the book as a whole is the person holding the Copyright over this compiled book. Therefore, if anyone unlawfully copies and distributes one of the individual pictures in the book, the photographer who took the photo in question can take legal action against Copyright infringement. Although the picture also appeared in the book the author holds Copyright over, the photo only makes up a small part of the entire book, making the author’s legal standing in this case not as strong as the photographer’s. Once one has obtained the photographer’s permission to copy and use the picture in case, there is not much the author can legally do against this – while someone having the author’s permission to use the picture may still face charges of Copyright infringement from the photographer.

Freedom of contract in relation to the division of Intellectual Property rights

The rules regarding division of Intellectual Property rights are rarely mandatory, meaning parties involved can decide upon their own specific division of rights by contract. Article 1320 of the Indonesian Civil Code stipulates how terms and conditions as agreed upon through a contract are legally binding to all parties involved, as long as those do not interfere with the law, public order or decency. This freedom expressively applies to the division of Intellectual Property rights as well.

Intellectual Property