Preliminary Analysis of the Government Regulation Number 56 of 2021 on the Management of Song and/or Music Copyright Royalties
By: Hafez Gumay – Advocacy Manager, Koalisi Seni
On 30 March 2021, President Joko Widodo finally issued Government Regulation (PP) Number 56 of 2021 on the Management of Song and/or Music Copyright Royalties, which is the mandate of Article 35 paragraph (3) of Law Number 28 of 2014 on Copyright.
The Government Regulation (PP) came very late, almost seven years after the Copyright Law was enacted. As a matter of fact, implementing regulations for a law should be completed no later than two years after the law comes into force. This sad phenomenon is unfortunately common in the Indonesian legal system. We can reflect on Law No. 33 of 2009 on Film and Law No. 5 of 2017 on Cultural Advancement, whose implementing regulations are still not complete until now.
Apart from the problem of delays, the issuance of this PP on the Management of Song and Music Royalties has been a breath of fresh air for songwriters in Indonesia because now the legal basis for collecting and distributing royalties becomes stronger. Previously, there was only a Ministerial Regulation and a Decision of the Minister of Law and Human Rights that regulated the appointment of commissioners of the National Collective Management Institute/Lembaga Manajemen Kolektif Nasional (LMKN), the establishment of a Collective Management Institute/Lembaga Manajemen Kolektif (LMK), and the amount of the royalty tariff rates.
Because this PP has not even been promulgated for a month, the government has not had time to disseminate the meaning and interpretation of the various content materials contained in it. However, the initial analysis of Koalisi Seni found several things that stakeholders must pay attention to so that the implementation of the PP on the Management of Song Royalties is beneficial to the Indonesian music ecosystem.
First, regarding the scope of activities that are required to pay royalties. Article 2 regulates the scope of activities that are required to pay royalties, including performances, announcements, and communication of works for commercial purposes which are carried out analogously or digitally. A work performance is when someone performs someone else’s song or music. A work announcement is when someone plays and recites someone else’s song or music. A work communication takes place when someone transmits a recording of a song or music or a recording of his/her performance to the public. In other words, the PP on the Management of Song Royalties does not only regulate royalty obligations from musical performances by other people, but also includes playback of recorded songs to broadcast recorded music performances through various mediums, including the internet.
Although Article 3 only regulates conventional forms of commercial activities such as music concerts, hotels, restaurants, cafes, karaoke, television, and radio without mentioning digital content services such as Spotify and Youtube; it is possible that in the future there will be a Ministerial Regulation that includes digital content services as a commercial activity that is required to pay royalties. All stakeholders of the music ecosystem have the task of advocating the preparation of such Ministerial Regulation so that songwriters in Indonesia do not become victims of exploitation by companies providing digital contents.
Second, the task deals with the establishment of a national song and music database as a reference to collecting and distributing royalties. So far, the biggest challenge to copyright enforcement in the music sector is the absence of a reference database for collecting and distributing royalties. Not all songwriters in Indonesia have registered their works at the Ministry of Law and Human Rights (Kemenkumham). Although copyright protection automatically applies when a work is published without having to be registered first, recording the work at the Ministry of Law and Human Rights will certainly reduce the burden of songwriters if they are involved in a royalty dispute. So, Articles 4 to 7 instruct the Ministry of Law and Human Rights to provide a work registration service. Data from that service is then fed into a song and/or music database which is constantly updated.
Furthermore, Indonesia does not have a system that can detect and calculate the commercial use of songs and music yet. This system is absolutely necessary to ensure that the distribution of royalties to songwriters will be done fairly. So far, the determination of the amount of royalty distribution for songwriters has never been clear because the data on the number of songs and music usage has not been transparent. To overcome this problem, this PP mandates LMKN to build a Song and/or Music Information System/Sistem Informasi Lagu dan/atau Musik (SILM). SILM will record all commercial use of songs and music in Indonesia. These records then become the basis for distributing royalties to songwriters. It is expected that, after SILM is operational, every songwriter will get royalties according to the amount of use of their songs and music, with proof of a transparent calculation.
Article 22 orders the Ministry of Law and Human Rights to build a data center and LMKN to build SILM no later than two years after the PP is enacted. Reflecting on the delay in the issuance of the PP on the Management of Song Royalties, all stakeholders of the music ecosystem must continue to pressure the Ministry of Law and Human Rights and LMKN to immediately complete their obligations. It is because, without a data center and SILM, transparency in collecting and distributing royalties will be difficult to achieve.
The third task is the collection and distribution of royalties for songwriters who have not been registered as LMK members. Article 12 regulates that the collection of royalties is not only carried out for the use of songs and music belonging to songwriters who have been registered as members of the LMK. The works of songwriters who have not joined the LMK will also have royalties collected by the LMKN. Of course, such issue raises another question. What happens to the royalties earned by the songwriters who have not been registered as LMK members? Can they still be claimed by the songwriters?
The answer can be found in Chapter 15. The article stipulates that LMKN must announce the collected royalties to the public so that songwriters who have not joined the LMK can also see the records. If they want to claim the royalties, they must register themselves as members of the LMK first. If during the two years since the records were announced to the public the results of the collection of royalties are not claimed by the songwriter concerned, the funds will be included as a reserve fund that can be used by LMKN.
This provision has the potential to injure the rights of songwriters who have not joined LMK. The government must spread the information regarding the importance of being a member of LMK for all songwriters in Indonesia and ensure easy access for those who want to register. In addition, LMKN is also required to collect and distribute royalties from songwriters who are not registered with LMK in a transparent manner. There should be no malicious practice that deliberately covers up royalty information for songwriters who are not LMK members, so that their royalties become a reserve fund for LMKN’s unilateral interests.
The explanation above shows that the road to copyright protection in the field of music is still long until it reaches a “well” condition. We need consistent efforts from all stakeholders of the music ecosystem so that this PP can be implemented properly.
In the end, any laws and regulations regarding copyright will not be able to run effectively if there is no awareness from the public to appreciate the works of the artists. The late Glenn Fredly always said that the music ecosystem starts with a song. So, the guarantee of copyright protection for songwriters is an absolute requirement to create a better Indonesian music ecosystem.
Never take the obligation to pay royalties as a form of musician’s greedy intention. Without the music and songs they create, our lives would feel so lonely. Royalties are rights that musicians deserve for their services to inspire us all with their work, as well as a form of our appreciation for the artistic achievements of fellow human beings. It’s time we pay tribute to the arts that brings us to life.
Illustration: ultramarinfoto via Canva