How is open-source regulated in the copyright law in Indonesia?
Despite its nature, which allows public access and use, under Article 40 paragraph (1) item(s) of the Copyright Law (UU Hak Cipta), open-source software is classified as a creation in the form of a computer program and thus remains protected under the Copyright Law.
For further explanation, you can read the review below.
The article below is an update of the article entitled ‘Open Source Regulations in the Copyright Law’ prepared by Ardianti Koentjoro and was first published on 27 April 2012.
Definition of Open-Source Software
According to an article entitled ‘Open Source at the Ministry of Communication and Information (MoCI) (now, the Ministry of Communication and Digital Affairs),' (Open Source di Kominfo) from the Palangka Raya City MoCI website, open-source or open-source software refers to a computer program in which the maker or creator of the computer program provides access to the public to freely copy, change, or modify the source code available in the computer program; hence, it can be used to create another computer program and distribute the computer program. The use of open-source computer programs in Indonesia has been implemented in the MoCI using several open-source computer programs such as Debian, Community ENTerprise Operating System (“CentOS”), MySQL, SQLite, and several other open-source computer programs.
The Copyright Law as a Legal Basis for Open-Source Software
From a legal perspective, computer programs or software are one of the creations or works that are protected by the Copyright Law (UU Hak Cipta), as provided for in the following articles:
Article 1 point 9
A computer program is a set of instructions expressed in the form of language, code, schemes, or in any form intended for a computer to work and perform certain functions or to achieve certain results.
Article 40, paragraph (1) item(s)
A protected creation includes a Creation in the fields of science, art, and literature, consisting of:
a…
b…
…
…
s. a computer program.
With reference to the provisions above, we can conclude that an open-source computer program is essentially a creation or work that is protected by Copyright Law, even though the open-source computer program can be used freely by the public.
Furthermore, the free use of an open-source computer program by other parties is basically not in conflict with the Copyright Law, particularly Article 9 paragraph (2), because the creator or maker of an open-source computer program has given consent for use to other parties to change, copy, modify, or develop it into a new computer program up until distributing it through the licensing provisions that accompany or are set out in the open-source computer program. Article 9 of the Copyright Law reads in complete as follows:
- The Copyright Creator or Holder as referred to in Article 8, has the economic rights to:
- publish a Creation;
- multiply a Creation in all forms;
- translate a Creation;
- adapt, arrange, or transform a Creation;
- distribute a Creation or copies thereof;
- exhibit a Creation;
- announce a Creation;
- communicate a Creation; and
- rent a Creation.
- Any person who exercises economic rights as referred to in paragraph (1) is required to obtain consent from the Copyright Creator or Holder.
- Any person without the consent of the Copyright Creator or Holder is prohibited from duplicating and/or using the Creation commercially.
Meanwhile, Article 8 of the Copyright Law stipulates that economic rights are the exclusive rights of the copyright creator or holder to obtain economic benefits from their creations.
In practice, the type of license or consent for use by other parties set out in an open-source computer program is a public license, such as a Permissive License, for example, the MIT License, or a Copyleft License, for example, the General Public License, as follows:[1]
-
- Permissive License: This license is referred to as “anything goes” because it places minimal restrictions on how others can use the open-source component. This means this type of license allows varying degrees of freedom to use, modify, and redistribute the open-source code, to permit the licensee to own and commercialize intellectual property rights in proprietary derivative works, and to impose very few restrictions and obligations on the licensee (other than acknowledging the identity of the original software developer).
- MIT License: This license grants permission to anyone to use, sell, copy, merge, distribute, and modify the software and relevant documentation, provided that proper credit is given to the original author or creator of the source code.
- Copyleft License: A copyleft license states that if you distribute or create software based on copyleft software, you must disclose the proprietary source code, and your software must also be free and available to the public.
- General Public License (“GPL”): This license means that any software written based on any GPL component must be released as open-source. This means that any software that uses the GPL open-source components is required to release the complete source code to the public for free. In addition, everyone has the right to modify and distribute the entire code.
Therefore, the public is allowed to freely use open-source computer programs, including their source code, as permitted by the creator through the licensing terms. However, any use by third parties must comply with the applicable public license terms.
Based on our practice, an open-source computer program is often used to develop or even create a new computer program. Although basically permitted or allowed, such development or modification must still pay attention to the provisions of the license applicable to the open-source computer program, such as:
- the obligation to continue to provide the source code for a computer program resulting from the development of an open-source computer program;
- provisions regarding the moral rights of a creator or ownership of intellectual property rights; and
- restrictions and conditions so that a computer program resulting from the development or modification of an open-source computer program can be used commercially.
However, even though every new computer program resulting from the modification or development of an open-source computer program can be assessed as a new creation that is protected by copyright in Indonesia, as provided for in Article 1 point 3, [2] Article 1 point 9, and Article 40 paragraph (1) item s of the Copyright Law, currently, in our opinion, the licensing regulations in the Copyright Law cannot provide legal certainty regarding the use of open-source computer program licenses. This is because in the Copyright Law itself there are no specific regulations regarding public or free licenses.
This article is an English translation of the A&CO Klinik Hukumonline article, available here.
Legal Basis:
Law Number 28 on Copyrights (Undang-Undang Nomor 28 Tahun 2014 tentang Hak Cipta).
References:
- Anubha Gupta. The Legal Issue to Thing About When Using Open-Source Software. Queen Mary University of London, Centre for Commercial Law Studies, 2021;
- Open Source di Kominfo, Palangka Raya City MoCI, accessed on 20 December 2024, at 11.11 WIB.
[1] Anubha Gupta. The Legal Issue to Thing About When Using Open-Source Software. Queen Mary University of London, Centre for Commercial Law Studies, 2021, page 4
[2] Please see Article 1 point 3 of Law Number 28 of 2014 on Copyrights (Undang-Undang Nomor 28 Tahun 2014 tentang Hak Cipta): Creation is any creative work in the fields of science, art, and literature which is produced based on inspiration, ability, thought, imagination, dexterity, skill or expertise which is expressed in a tangible form.
