The Protection of Software in Indonesia

Software is protected by copyright in Indonesia (Article 12 (1) of Indonesian Copyright Law). Software is protected for 50 years from the first publication (Article 30 (f) of Indonesian Copyright Law).

In line with Europe, Software Copyright Directive 91/250/EEC requires copyright law to recognise software as a literary work[1]. Furthermore, according to Art 52(2)(c) of the European Patent Convention states that “programs for computers” “as such” are not inventions, and therefore are not patentable.

According to Article 1 (8) of Indonesian Copyright Law No 19 of 2002, Computer program (software) shall mean a collection of instructions manifested in the form of a language, codes, diagrams, or any other forms, which when combined with media that can be read by computers will be able to make computers work to execute certain functions or to obtain specific results, including the preparation in designing the instructions.

Unfortunately, copyright only protects the illegal copying of a computer program, not the claimed invention[2]. Moreover, copyright protection for computer programs remains weak and because it protects only the expression in its tangible form of the work, as opposed to its inventiveness. [3] It protects only the expression of the work, and not the idea underlying the work. But, evaluating prior art of software patent is complicated, because the prior art in software is often not documented in paper form.[4] 

Microsoft and Google as a giant technology did not getting patents to protect their new products, they are stockpiling patents mainly to discourage competitors from suing them.[5]

Can Software be protected by Patent in Indonesia ?

According Article 7.C of Patent Law in Indonesia, a patent shall not be granted to an invention regarding any theory and method in the field of science and mathematics. Because algorithmic is a part of mathematics, the software cannot be protected by patent in Indonesia. However, Indonesian IP Office will grant the patent of software as long as the said software has been patented in other countries which have ratified the PCT. Indonesia is the Patent Cooperation Treaty (PCT) member, so according to PCT, the software would be protected in Indonesia with regional protection among WIPO members (Indonesian Presidential Decree No. 16 of 1996).  Moreover, the software should have a technical character and related to invention, so that the software can be protected by patent in Indonesia.

Patent of MICROSOFT CORPORATION (US) with priority rights – 10.400.747 / 26 Mar 2003 / US is example of software patent granted in Indonesia. This patent was filed in Indonesia on March 24th, 2004.

Source :

[1] Guadamuz, Andrés  Patently Obvious: The Software Patent Debate – WIPO

[2] Martin Goetz ., Should Patents Be Awarded to Software ? : http://online.wsj.com/news

[3]Patentability of computer programs in Indonesia : http://www.lexology.com/library/detail.aspx?g=23b7dd6e-bf99-4571-b2ef-13137adacbde

[4] Copyright Software VS Patenting Software : http://otd.harvard.edu/inventions/ip/software/compare/

[5] Should Patents Be Awarded to Software ? : http://online.wsj.com/news

 

Written by :

Agus Candra Ukuran Kecil Banget

Agus Candra Suratmaja

Strategy Management of Am Badar & Partners


Am Badar & Partners

JL Wahid Hasyim No 14, Jakarta 10340, Indonesia

Tel: +62 21 398 37314

or +62 21 398 37315

info@ambadar.co.id

www.ambadar.co.id

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