PROTECTION OF INDUSTRIAL DESIGN RIGHTS FOR PEARL CRAFT PRODUCTS (A Socio-Legal Reality Study)

INDUSTRIAL DESIGN RIGHTS PROTECTION

ON PEARL CRAFT PRODUCTS

(A Study of Reality Socio-Legal)[1]

 

Muchtar AH Labetubun

 

 

A. Introduction

Law Number 31 of 2000 concerning Industrial Design has not yet been fully implemented, at least for those classified as Small and Medium Enterprises (SMEs). Several studies have shown that industrial design rights are still difficult to obtain within the local system. This is despite the fact that one of the primary reasons for the law's enactment was to accommodate intellectual work from SMEs.[2]However, in reality, it is the SME group that has not benefited much from industrial design rights. Applications from SMEs are very few compared to applicants from other business types.

Indonesia still needs to effectively socialize the regulations on Intellectual Property Rights, especially Industrial Designs, to the business community, as the party directly impacted by the implementation of Industrial Design Rights, so that awareness and law enforcement of Intellectual Property Rights regulations, especially Industrial Designs, increase so that owners or rights holders of a work or innovation can be protected by industrial design laws. If violations of Industrial Designs continue, it is possible that Indonesia could be brought to the WTO Panel and will receive sanctions from the WTO if it is proven to be poor in protecting its Intellectual Property Rights, especially Industrial Designs. The worst consequence of this sanction is the refusal of entry or quota restrictions on Indonesian products to a country. If this happens, Indonesia will have difficulty marketing its products. One sector that will be affected is the small business sector, one of which is pearl shell crafts. Craftsmen will have difficulty marketing their crafts.

This phenomenon is interesting to study because the Industrial Design Law itself actually has a character social engineering. Character social engineering not only is it owned by the Industrial Design Law, but it is the basis of the majority of legislation in today's modern state,[3] Even Satjipto Rahardjo said that it is not an exaggeration to say that the law in its current use is almost a means to carry out social engineering. [4] The Industrial Design Law is a legal instrument tasked with bringing about social change, including ensuring that as many citizens as possible utilize and respect industrial design rights. It is within this context that the various sociological and legal issues related to the implementation of the Industrial Design Law are the primary discussion in this paper.

Theoretically, the lack of significance of the Industrial Design Law for SMEs, particularly pearl craftsmen, could be due to two possible causes. The first possibility is that designers themselves are less interested in responding to offers of industrial design rights, and the second possibility is that the legal framework in the industrial design field may not be aligned with the realities of designers' lives.

 

B. Efforts to Protect Pearl Shell Craft Industrial Designs

The enactment of the Industrial Design Law certainly brings positive hope for the process of protecting industrial design rights in the future, considering that the Industrial Design Law is an improvement on the Copyright Law as a special protection for designers for industrial design rights related to designs that are mass-produced by providing an aesthetic impression in the form of two-dimensional or three-dimensional patterns so that they have a high selling value. Based on Roscoe Pound's theory that law as a tool of social engineering where the Industrial Design Law is an effort to change the social values ​​of designers registering their industrial designs for legal protection.

It is known that artisans' efforts to protect their pearl shell craft industrial designs have not yet legally protected their designs, meaning that none of them have registered their industrial designs. Design protection efforts exist only at the individual artisan level, namely:

Design protection at the individual craftsman level is a determining factor for whether or not legal protection (design registration) can be accepted, because individual protection by craftsmen is what determines whether a design object can meet the provisions at the time of registration or not. Although individual protection efforts have been made by craftsmen, in reality there are still plagiarism and piracy of newly created pearl shell craft designs, this shows that in the individual protection carried out by the craftsmen there are still weaknesses, namely the design has been traded, so that the design will quickly spread to the community and it is very possible for plagiarism and piracy to be carried out, therefore individual protection by craftsmen must be immediately followed up with legal protection before the pearl shell craft design is traded, so that piracy and duplication of pearl shell craft designs can be avoided.

The efforts taken by the Ambon City Government to protect the results of the pearl shell craft industry design are the parties responsible for empowering small businesses in Ambon City in making several efforts to protect the craftsmen's pearl shell craft designs, namely: first, Conducting outreach on intellectual property rights (IPR), particularly regarding industrial design. This outreach is conducted during other training sessions or included as part of the training material. This is intended to increase the frequency of IPR training, but this actually results in training on IPR itself being less than optimal. During the IPR training, only one session on industrial design was conducted, due to the fact that industrial design is a new topic for the Regional Government. This is understandable considering that the Industrial Design Law itself was only created in 2000. Second, Documentation[5] of pearl shell craft designs, which are among Ambon City's leading products. This documentation is intended as an initial strategy for protecting pearl shell craft designs. Third, Providing legal consultations to small businesses, including those regarding intellectual property rights, has been ineffective due to a lack of outreach to artisans. Fourth, Assistance with industrial design registration is being provided. This assistance has not yet been implemented because there have been no requests for registration from pearl oyster artisans.

From the overall development program above, it can be seen that development in the field of protection of industrial design results has not been implemented well, considering that the craftsmen themselves have not yet received legal consultation or registration assistance.[6] to the results of its industrial design, the Regional Government must immediately make improvements to its work program regarding the protection of the results of industrial designs of pearl shell craftsmen, for example by scheduling guidance on industrial design into the RPJM of Ambon City, it must also immediately seek alternative solutions for further documentation programs that have been carried out by the Regional Government to provide protection for pearl shell designs that have already been unable to be registered because they do not meet the elements of the Industrial Design Law, in addition it must also collaborate with Provincial and Central Government institutions, Universities, and Non-Governmental Organizations (NGOs) that have concerns in the field of empowerment of IPR, especially industrial design. This collaboration can minimize internal obstacles faced by the Regional Government, such as human resources, costs or operational techniques, and can also provide convenience in determining the right concepts and strategies in protecting and developing industrial designs in the region.

The efforts made by craftsmen and local governments to protect the results of industrial design rights for pearl shell crafts as described above, show that even though the legal instruments and programs are quite complete, there are problems in bringing change and protection to the craftsmen's environment without also being carried out by policies that have the potential to bring about social disintegration which is the main cause of the failure to register industrial designs for pearl shell crafts, as according to Roscoe Pound who specifically discusses the social requirements for the Industrial Design Law to function as a tool for social change (law as a tool of social engineering).

 

C. Socio-Legal Barriers to Industrial Design Law Faced by Pearl Shell Craftsmen

Protection of industrial designs for pearl shell crafts has not been implemented in accordance with the formulation contained in the Industrial Design Law, this is because pearl shell craftsmen are experiencing obstacles. socio-juridical The Industrial Design Law is influenced by factors of legal substance, legal structure, and legal culture. Based on Lawrence M. Friedman's theory in Legal System Theory (Legal System Theory) which states that what influences the working of law in society is related to three things, namely legal substance, legal structure and legal culture.

1. Legal Substance (Legal Substance)

The Industrial Design Law has a sound concept and objectives, but empirical findings reveal a number of socio-legal obstacles concerning its substance. Categorically, there are three groups of issues that need to be addressed: the formulation of articles, procedures and costs, and the objectives and interests protected.

First Article Formulation. New ideas formulated in a number of articles of the Industrial Design Law are felt to be too abstract, thus giving rise to doubts for designers. Regarding the concept of industrial design, for example, in Article 1 it is formulated very generally as "a creation of a shape, configuration or composition of lines or colors, or a combination thereof in three-dimensional or two-dimensional form that gives an aesthetic impression and can be realized in a three-dimensional or two-dimensional pattern and can be used to produce a product, industrial commodity or handicraft". Legally and empirically, there is ambiguity regarding what is meant by industrial design, whether it is a pattern, a drawing, or the finished product.

This causes designers to hesitate to take the risk of speculating on registering their designs for fear of not complying with Article 1 of the Industrial Design Law. A number of risks may be accepted, including: fear of being accused of plagiarism, and concerns about time and costs. The "can be produced" criterion can actually be a differentiator between industrial design rights and other rights in the field of Intellectual Property Rights, especially copyright which has so far protected the designs of designers, but without a clear minimum production quantity limit, it can cause confusion. For example, Australia and America have set a minimum production quantity of 75 pieces. Less than that number is considered ineligible to obtain industrial design rights.[7]

Another obstacle that causes problems is the novelty requirement stipulated as a requirement for industrial design registration. Article 2 paragraph (1) stipulates that industrial design rights are granted for new industrial designs. A design is considered new if on the date of receipt of the industrial design it is not the same as any previously existing disclosure (Article 2 paragraph (2) of the Industrial Design Law. In practice, many designs that are not actually new are still declared to have their applications accepted and receive industrial design rights certificates, or designs that are not actually new receive protection as being "truly" new.[8]

This can happen because Indonesia adopts a registration system (registration system) so that the Directorate General of Intellectual Property Rights is only tasked with accepting registrations, announcing (for 3 months), and issuing industrial design rights certificates if there are no objections from other parties, as regulated in Article 26 of the Industrial Design Law, the rejection can only be done if there is a party who objects to the application. This is different if the substantive examination system is implemented (full examination system). This system, before protection is granted by the State, must be preceded by a substantive examination, in addition to the Indonesian Industrial Design Law does not provide a clear measure of how far a design is said to be similar to others, for designers, the lack of clarity regarding these criteria is very disturbing because it is related to various risks that will befall them when they want to apply for industrial design rights.

Secondly, Procedures and Costs. Issues related to the application announcement mechanism in the industrial design rights registration process are another issue designers face. This mechanism opens the opportunity for the public to file objections to submitted designs. For designers, without clarity regarding design eligibility criteria, design registration efforts become a waste of time and money.

The formal requirements for an industrial design application determine that an application is considered acceptable because it has fulfilled the administrative requirements and there are no objections from other parties. Industrial design rights will be granted within a maximum of 7 months with the following details:

a) From the date of receipt to announcement, maximum 3 months,

b) From the start of the announcement until the end of the objection submission period (registration), it takes 3 months,

c) From registration to issuance of the industrial design certificate, the maximum time is 30 days. If there are deficient requirements or objections from other parties, the time period for obtaining industrial design rights will be extended.

In terms of costs, industrial design registration is set at Rp. 600.000,- for one industrial design or several industrial designs that are a unit or have the same class, for pearl shell craft designers who are categorized as SMEs, only need to pay half, which is Rp. 300.000,-, but this fee does not include "other costs". If the applicant delivers the files themselves to the Directorate General of Intellectual Property Rights Office in Tangerang, of course, it will be added to the applicant's accommodation costs, when the industrial design rights certificate is ready, it must also be collected. This also becomes an obstacle for SMEs in processing their industrial design rights. It is very reasonable when seeing such procedures and costs, designers are reluctant to register their designs. Some pearl shell craft designs change dynamically in a relatively short time, the time of 7 months is felt to be not equivalent to the costs incurred and the benefits to be received.

Third Protected Goals and Interests. As stated in the Considerations and Explanations section of the Industrial Design Law. The first goal is to eliminate social barriers between actors. This means that plagiarism and imitation can cause disruptions in relationships between designers. With the Industrial Design Law, it is hoped that these disruptions can be eliminated so that relationships can be established well. Empirically, this offer does not correspond to the actual reality, as discussed in the previous section, that in the context of relationships between designers which are friendly (harmony), the designers have a shared experience, namely having to be able to maintain harmonious relationships for survival. [9]. Maintaining harmony is a key aspect for Maluku people in general. Maluku people value tolerance (ale taste beta taste), thus becoming one of the fundamental explanations for why designers are not too involved in total conflict despite the practice of copying their work. This shared experience is what makes designers not too concerned about the practice of copying the form or style of their designs by others.

The second objective to be protected through the Industrial Design Law is to create a climate that fosters creativity in creating new designs. With the protection provided by the Industrial Design Law, it is hoped that a sense of security and legal certainty will arise and artisans will receive economic benefits after obtaining a registered design, thereby spurring designer creativity. The reality among pearl shell craft designers is actually the opposite. The dynamics of consumer demand from time to time encourage pearl shell craft designers to always create new creations that suit consumer demand. This adaptation strategy is considered more functional than standardizing designs through industrial design rights procedures.

This is the situation that exists regarding the offer of industrial design rights among designers. Currently, in the midst of a "sense of security" enjoying these relationships, reciprocity[10] With consumers, the majority of designers do not yet feel the need for exclusive industrial design rights. This is also the case among pearl shell craft designers in the context of survival (survival) and adaptation to dynamic consumer demand, designers pay little attention to the practice of others copying their designs' shapes and patterns. Instead, they choose to avoid using industrial design rights.

The third purpose of protection provided by the Industrial Design Law is intended to: protect the exclusive rights of industrial design rights recipients. The previous description has mentioned that in the ideal conception and system of the situation of pearl shell craft designers, this offer of protection is not attractive. The designers conceive of their work as a legacy, what they create is nothing more than a continuation of the work of their ancestors or a trust from their ancestors whose main purpose is work for the benefit of many. That is why, even though their business is their main source of livelihood, it is not justified to use it as a monopoly right for individuals and harm others. The ancestral heritage belongs to all children and grandchildren, by not emphasizing the claim of absolute rights to the results of their work, not only provides a sense of security and a sense of charity, but also allows them to share experiences, skills, and inspiration like family and relatives.

 

2. Legal Structure (Legal Structure)

A good regulation is meaningless without being supported by the capacity of the bureaucratic apparatus, organization and facilities owned by the agencies tasked with disseminating it.[11] Industrial Design Law to the public in this case pearl shell craftsmen. Considering that the Industrial Design Law adheres to a registration system which is a requirement for the right to a registered industrial design so that it can be protected by the Industrial Design Law, so that regional bureaucratic officials can immediately act to disseminate the Industrial Design Law directly to the public, especially pearl shell craftsmen, especially now that it is so easy to find activities that constitute plagiarism of industrial designs. Based on this description, the researcher analyzed one of the components that is very influential in disseminating the Industrial Design Law.

The structural development efforts undertaken by upgrading the Directorate General of Copyright, Patents, and Trademarks to the Directorate General of Intellectual Property Rights (IPR) through Presidential Decree Number 144 of 1998 are an important step in the development of the IPR system in Indonesia. The organizational structure consists of a Director General, a Secretary to the Directorate General, and five Directors, namely:[12]

a) Director of Copyright, Industrial Design, Integrated Circuit Layout Design, and Trade Secrets

b) Director of Patents

c) Brand Director

d) Director of Intellectual Property Cooperation and Development

e) Director of Information Technology

With this new structure, the Directorate General of Intellectual Property Rights (DGIP) seeks to implement an integrated national IP system. In addition to coordinating with relevant agencies, it also aims to expand local, regional, and international collaboration networks, including with developed countries such as the United States, Japan, and France, as well as with international organizations.

Functioning as an extension in the region, each Regional Office of the Ministry of Justice and Human Rights based on the Decree of the Court Number M.09-PR.07.06 of 1999 is given the task of receiving IPR applications which include applications for registration, extension, transfer of rights, change of name or address, recording of cancellation, deletion, excerpt, license, appeal, and other applications. The Regional Office is not given the authority to examine or assess the material whether the file is acceptable or not. The nature of its work is only to receive files to then be sent to the Directorate General of IPR within 3 working days from the date the application is received. This task is limited only to the fields of copyright, patents, and trademarks.

The enactment of the Industrial Design Law in June 2001 was not immediately followed by a system for accepting industrial design application files by Regional Offices. It was only in November 2003, with the Decree of the Minister of Justice and Human Rights Number M.11.PR.07.06 of 2003, that this task was expanded to include other rights, including industrial design rights. This step was intended to improve legal services and provide convenience in submitting applications for design protection. This initial stage was indeed very helpful because it would reduce additional costs in processing rights. Before the system for accepting files through the regions, applicants had to process their own files with the Directorate General of Intellectual Property Rights, which meant incurring additional costs.

To avoid rejection of the application, which would also mean forfeiting the registration fee, prior to registration of a design, monitoring must be conducted to determine whether the design to be registered is already registered as the property of another party. The means available at regional offices is the General Register of Industrial Designs, but this is quite difficult given the large number of registered designs. It would be helpful to have a computer-programmed monitoring tool that divides industrial designs into specific classes or classifications.

The ongoing work system between the Directorate General of Intellectual Property Rights and the Department of Industry and Trade as agencies involved in the development of Small and Medium Industries (SMEs), particularly regarding industrial design, the socialization carried out will not be effective if it is only carried out without any directed follow-up programs. The benefits of socialization are not felt by most pearl shell craft designers. As a result, there is a less than positive response that implies a loss of trust in the programs offered by the government. The impression that socialization is merely an annual routine agenda is understandable because in addition to the lack of directed follow-up programs, the dissemination program carried out is not supported by policies ( ) which is clear, the lack of adequate political participation, and the lack of resources to support program implementation.

The absence of clear dissemination guidelines results in a lack of coordination between relevant agencies in implementing dissemination. Various vertical and horizontal agencies, potentially capable of contributing to dissemination activities, are ultimately unable to work in an integrated manner due to the lack of proportional division of tasks. This situation naturally leads to overlapping activities due to the inadequate mobilization of resources from each agency. The implication is that the limited capacity of personnel, facilities, and infrastructure within each agency is increasingly felt due to this lack of coordination.

The development of a national intellectual property rights system is also linked to the readiness of its human resources. Truly professional personnel in the intellectual property rights field are required. Furthermore, administrators or officials within the Directorate General of Intellectual Property Rights must be able to consistently implement existing regulations. Therefore, it can be said that designer empowerment is also influenced by the outreach efforts undertaken and the facilities offered by the Department of Justice and Human Rights in each region.

 

3. Legal Culture (Legal Culture)

Talking about legal culture, according to Lawrence M. Friedman as quoted by Satjipto Rahardjo, the components of legal culture are components consisting of values ​​and attitudes which bind the system and determine the place of the legal system in the midst of the nation's culture as a whole.[13]. Based on this statement, the author translates that legal culture in other words is the state of mind and attitude of the community (pearl shell craftsmen) which reflects the rules or legal norms that are enforced, used or avoided in relation to the Industrial Design Law to register their industrial design works protected by the Industrial Design Law.

The reason for the failure of industrial design law to bring about social change among pearl shell craft designers is not only because its provisions are very general and/or unclear, but also because the legal interests to be protected are not appropriate and have not been understood by the majority of designers. This deficiency is increasingly felt because the relevant government officials who theoretically function as agents of change have not sufficiently carried out a kind of socialization and institutionalization of the provisions regarding industrial design rights to pearl shell craft designers.

 

D. Conclusion

From the above discussion, it can be concluded that the Industrial Design Law is not sufficiently functional in carrying out social change because the legal interests to be protected, although understood by most pearl shell craft designers, are not in accordance with the factual reality that exists in the environment of pearl shell craft designers. Law as a social system is always related to its environment. A systems approach is something that cannot be left out in the formation of the Industrial Design Law, reminding that the Industrial Design Law as a normative system is a subsystem of a large system, namely society or its environment.

 

 

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