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COPYRIGHT AS SECURITY FOR A DEBTOR

Copyright falls under the category of intangible movable assets, as set out in the general elucidation of Law No. 28 of 2014 regarding Copyright (New Copyright Law). In this regard, the New Copyright Law limits the definition of rights over goods (hak kebendaan) against copyright, while the previous Law No. 19 of 2002 regarding Copyright and Law No. 6 of 1982 regarding Copyright only categorize copyright as a movable asset.

Pursuant to Article 193) of Law No. 42 of 1999 regarding Fiducia Security (Fiducia Security Law) goods are defined as any thing that can be owned and transferred, either tangible or intangible, registered or unregistered, movable or immovable, movable but cannot be encumbered with mortgage or hypothec.

Therefore, any goods that fulfil the provision under Fiducia Security Law can be encumbered with fiducia security. In relation to the above, it is clear that Copyright can be secured as fiducia object whose implementation will be in accordance with the prevailing laws and regulations. This is also governed by the New Copyright Law.

However, the question is whether the regulation which says that copyright can be encumbered with fiducia security is acceptable to the banks in their position as the creditor? Does copyright have economic value for the creditors?

In general, the creditors is willing to grant the loans if the debtors are able to provide security over their assets to secure the repayment of the loans. According to Munir Fuady as mentioned in his book “Law on Security For A Debt” (Erlangga, 2013) the credible security must fulfil few requirements being (i) the process to bind the assets is easy and fast, (ii) the security will not put the creditors in a dispute, (iii) the value of the secured assets is easily calculated, (iv) the value of the security can increase or at least stable, (v) the security will not give obligations for the creditors, (vi) if the loan is non-performed, the security is easy to enforce with easy, cheap enforcement method without the assistance of the debtors.

The enforcement of fiducia security over copyright can be conducted through several ways being (i) enforcement after obtaining a writ of execution, (ii) enforcement by way of public auction, and (iii) private sale by the creditors. However, the enforcement over copyright is difficult to be performed due to the inexistence of precedent on enforcement of intellectual property rights in the form of copyright.

-ADP-